tag:blogger.com,1999:blog-37177630001843499482024-03-17T23:00:24.058-04:00A Lawyer's Blog - Jon Michael Probstein, Esq.Since 1977, Jon Michael Probstein has assisted people and businesses in all matters. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Admitted in New York and Massachusetts. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.comBlogger3699125tag:blogger.com,1999:blog-3717763000184349948.post-80589300147028428852024-03-09T17:57:00.000-05:002024-03-09T17:57:51.969-05:00DIVORCE - IF THE HOUSE CAN'T BE SAVED, SELL IT<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/0f30/at_home_beautiful_home_4.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="519" data-original-width="800" height="519" src="https://free-images.com/lg/0f30/at_home_beautiful_home_4.jpg" width="800" /></a></div><br />JH v. CH, 2024 NY Slip Op 50220 - NY: Supreme Court, Putnam 2024:<p></p><p>"It is ORDERED that the applications are disposed of as follows.</p>
<p>The applications before the Court compel a re-examination of <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn,</i> 43 NY2d 203 (1978)</a>.
There, the Court of Appeals held that real property owned by spouses as
tenants by the entirety may not be ordered sold prior to entry of a
Judgment of Divorce, as the tenancy cannot be severed in the absence of a
judgment. Although tenancies by the entirety remain a part of the real
property law of New York (<i>see,</i> EPTL §6-2.2), the nature and legal
incidents of the union of person in husband and wife in marriage—upon
which tenancy by the entirety is founded—have over the course of time
been fundamentally altered.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[1]" name="r[1]">[1]</a></sup> Moreover, the post-<i>Khan</i>
adoption and evolution of the Equitable Distribution Law (DRL §236),
"no fault" divorce (DRL §170[7]) and the Automatic Orders (DRL
§236B[2][b]) have resulted in a significant adjustment of the legal
criteria bearing upon the dissolution of marriage and its attendant
economic ramifications. In consequence, the foundation on which <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a> rests has been significantly weakened if not destroyed.</p>
<p></p><h2>FACTUAL BACKGROUND</h2><p></p>
<p>The parties were married on July 12, 2003. They have two daughters,
ages 14 and 8. The older child requires special attention due to medical
conditions and learning disabilities. She will never be
self-sufficient. For years, the parties enjoyed a relatively lavish
lifestyle, maintaining an apartment in New York City in addition to a
residence in Garrison, and sending their children to high-priced
Manhattan schools. They did so based primarily on the income Defendant
received from a manufacturing enterprise, and in part with financial
assistance from Plaintiff's parents. Plaintiff opted to function as
homemaker in part to provide care for the older child, although she is
now employed in a sales position which affords her flexible hours and
commission-based pay. Her 1099 Form for 2022 reflects compensation of
$5,700. With the onset of the Covid pandemic the parties relinquished
their Manhattan apartment, and they resided together with their children
in the marital home in Garrison until the tension became too great.
Plaintiff now lives with her parents and the children, and the parties
share an access schedule. The marital home is occupied by Defendant. A
foreclosure proceeding was commenced in 2019 and discontinued upon
Defendant's payment of $40,000 in July 2019. However, Defendant having
failed to make the August 2019 payment the mortgage is once again in
default and foreclosure proceedings are once again pending.</p>
<p>Defendant thereafter sought a loan modification with Wells Fargo
Bank. The proposed Modification Agreement lists both parties as
"Borrowers."<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[2]" name="r[2]">[2]</a></sup>
Plaintiff would be obligated on the proposed forty (40) year Mortgage
but not on the Promissory Note. The new principal balance would be
$881,988.50, with monthly payments of principal, taxes, and insurance
totaling $5,441.36.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[3]" name="r[3]">[3]</a></sup>
The Bank's appraisal of the marital residence valued the property at
$1,400,000. There is an outstanding mortgage with a current principal
balance of approximately $900,000. Without mortgage payments for several
years, the accrual of additional secured debt for past interest,
property tax and insurance payments is substantial. In addition, there
is a home equity line of credit in the amount of approximately $300,000
(as of June 2019), and substantial judgments exceeding $400,000 against
Defendant including:</p>
<blockquote>American Express (as of 4/9/21) $84,480.61</blockquote>
<blockquote>Cavalry SPV I, LLC, as assignee of Citibank (as of 9/28/20) $217,774.30</blockquote>
<blockquote>American Express (as of 1/11/23) $103,899.60</blockquote>
<p>Although it is unknown whether any portion of the outstanding
judgments has been satisfied, it is evident that the parties have little
or no equity in the marital home. Defendant's Statement of Net Worth
also lists credit card debts to Barclay's Bank in the amount of
$108,046, to Bank of America in the amount of $99,049, to UBS Bank in
the amount of $193,072, and to Wells Fargo in the amount of $49,747, but
those debts, totaling $449,914, have not been reduced to judgment.</p>
<p>Defendant has been the primary source of family income during the
marriage. However, there are open issues as to Defendant's income at the
time of submission of this motion. He claimed a <i>net</i> income of $3,500 per week (i.e., $182,000 per annum), which suggests a <i>gross</i>
annual income of approximately $250,000. There are a variety of issues
arising from Defendant's business dealings and non-compliance with
discovery issues. A forensic accounting has been ordered at an
additional expense to the parties (<i>see,</i> NYSECF Docs. No. 271,
282). Defendant's Statement of Net Worth lists his monthly expenses as
$25,263 (i.e., $303,156 per annum), an amount that exceeds his claimed
income by approximately 100%. His monthly <i>pendente lite</i>
maintenance payments have been sporadic in frequency and amount. There
are child support arrears as well. He has been unemployed but claims "I
am about to be hired in new employment and I expect I will be
compensated at over 200K per year. I expect the job in the next 30 days.
I just had my last interview" (NYSECF Doc # 289, ¶8). Although no
details about his prospective employer, position, location, salary, or
benefits were provided, Defendant now claims that he is employed at an
annual salary of $150,000.</p>
<p></p><h2>THE PENDING APPLICATIONS</h2><p></p>
<p>Pending before the Court are Defendant's application for an Order
directing Plaintiff to execute the proposed 40-year Mortgage and
Plaintiff's application for <i>inter alia</i> an order directing the
immediate sale of the marital residence. At the call of the calendar,
the Court was prepared to set a briefing schedule, but as the deadline
for acceptance of the mortgage modification was expiring, Defendant felt
compelled to respond orally to the Plaintiff's motion. After Defendant
and counsel were afforded the opportunity to review Plaintiff's papers
the Court heard oral argument on both applications and reserved
decision. There are two issues before the Court. First: May the Court,
or should the Court, impose upon a divorcing couple a 40-year mortgage
to preserve a marital asset that lacks any clear value? Second: May the
Court in the face of <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a> order a sale of the marital residence held as tenants by the entirety in the absence of a Judgment of Divorce?</p>
<p></p><h2>LEGAL ANALYSIS</h2><p></p>
<p></p><h2>I. The Circumstances Plainly Do Not Warrant A New 40-Year Mortgage</h2><p></p>
<p>The Court is asked to compel Plaintiff to execute a mortgage in the
hopes of saving an asset without value for a family with no known or
apparent ability to afford additional debt. Defendant relies on the fact
that Plaintiff was willing to do so in a prior foreclosure proceeding
and claims that the circumstances are no different now. Defendant
asserts such an order is necessary to prevent the dissipation "of the
main asset of the marriage." Plaintiff's position is clear: "I do not
want to have any financial ties with Defendant and his constant
financial games and maneuvers" (NYSECF Doc. # 307, ¶6). Plaintiff
further asserts she will be harmed by signing the Mortgage even without
liability on the Note. The likelihood of a future default by Defendant
will affect Plaintiff's credit and ability to secure housing for herself
and her children, especially when Defendant is before the Court
unemployed or recently employed, without income, and not paying child
support. From counsel's statements, Defendant apparently anticipates
that a new mortgage will take years to foreclose while he resides in the
residence, leaving Plaintiff unable to move on with her life. It is
difficult to find a cogent rational reason to support Defendant's
request for a new 40-year mortgage on the marital home. The application
is therefore denied.</p>
<p></p><h2>II. The <i>Pendente Lite</i> Sale of the Marital Home: Revisiting <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a></h2><p></p>
<p>Any realistic assessment of the parties' situation would lead to the
conclusion that the marital home must be sold to salvage any remaining
equity or at least to reduce the financial loss. The equitable
considerations supporting that conclusion were masterfully articulated
by Justice Richard A. Dollinger in <a href="https://scholar.google.com/scholar_case?case=14639052755220762650&q=JH+v+CH&hl=en&as_sdt=4,33"><i>D.R.D. v. J.D.D.,</i> 74 Misc 3d 237 (Sup. Ct. Monroe Co. 2021)</a> and in <a href="https://scholar.google.com/scholar_case?case=8383894211548386959&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Harlan v. Harlan,</i> 46 Misc 3d 1003 (Sup. Ct. Monroe Co. 2014)</a>. Per <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a><i>,</i> however, the tenancy by the entirety arising from the parties' marriage impedes the Court from taking appropriate action <i>pendente lite</i> and prior to the entry of a Judgment of Divorce.</p>
<p></p><h2>A. <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a></h2><p></p>
<p>In <i>Kahn,</i> the Court of Appeals addressed the question "whether,
in a matrimonial action, a court may order the sale of real property
held by the parties as tenants by the entirety, even though the marital
relationship has not been legally altered." <i>Id.,</i> <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33">43 NY2d at 206</a>. Concerning tenancies by the entirety, the Court observed:</p>
<blockquote>In contemplation of the law, husband and wife were but one person. (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1212416812951692709&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Matter of Klatzl,</i> 216 NY 83, 85</a>). Thus, a conveyance to them by name was a conveyance to only one person. (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=10388540934873783716&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Stelz v. Shreck,</i> 128 NY 263, 266</a>).
Because of the marital relationship they were said to be seized of the
estate in its entirety: each being seized of the whole rather than of
any undivided portion. (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Bertles v. Nunan,</i> 92 NY 152, 156</a>; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=10388540934873783716&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Stelz v. Shreck,</i> 128 NY, at p 266,</a> supra; <i>Hiles v. Fisher,</i>
146 NY 306, 312). At death, the survivor took the estate not because of
a right of survivorship, but because the survivor remained seized of
the whole. (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Bertles v. Nunan,</i> 92 NY, at p 156,</a> supra; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=17681694688373715400&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Jackson v. McConnell,</i> 19 Wend 175, 178</a>; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=10388540934873783716&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Stelz v. Shreck,</i> 128 NY, at p 266,</a> supra).</blockquote>
<p><a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn,</i> 43 NY2d at 206-207</a>. The <i>Kahn</i>
Court continued, "[t]he common law soon recognized that in addition to
death a legal dissolution of the unity of husband and wife would
necessarily affect the continuing validity of a tenancy by the
entirety." <i>Id.,</i> at 207. The Court quoted this highly salient principle from Judge Peckham's opinion in <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=10388540934873783716&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Stelz v. Shreck,</i> 128 NY 263 (1891)</a>:</p>
<blockquote>When the idea upon which the creation of an estate by the
entirety depends is considered, it seems to me much the more logical as
well as plausible view to say that as the estate is founded upon the
unity of husband and wife, and it never would exist in the first place
but for such unity; <i>anything that terminates the legal fiction of the
unity of two separate persons ought to have an effect upon the estate
whose creation depended upon such unity.</i></blockquote>
<p><a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn,</i> 43 NY2d at 207</a> (quoting <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=10388540934873783716&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Stelz v. Shreck,</i> 128 NY at 267</a>) (emphasis added).</p>
<p>In <i>Kahn,</i> no legal alteration of the parties' marital status
ever occurred: the wife's action for a separation was withdrawn and the
husband's action for a divorce was denied. The Appellate Division
nevertheless ordered a sale of the marital residence. Reversing, the
Court of Appeals held that "unless a court alters the legal relationship
of husband and wife by granting a divorce, an annulment, a separation
or by declaring a void marriage a nullity, it has no authority to order
the sale of a marital home owned by the parties as tenants by the
entirety." <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn, supra,</i> 43 NY2d at 210</a>. Interestingly, the Court distinguished <a href="https://scholar.google.com/scholar_case?case=14326474589892367962&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Caplan v. Caplan,</i> 38 AD2d 572,</a> and <a href="https://scholar.google.com/scholar_case?case=8983891565565110220&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Pearson v. Pearson,</i> 34 AD2d 797,</a>
on the grounds that in each of those cases a separation had been
granted, all the while recognizing that "a separation decree does not
dissolve the marriage." <i>See, </i><a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn, supra</i></a><i>.</i></p>
<p></p><h2>B. Tenancy By The Entirety and the Union of Person In Husband and Wife in Marriage</h2><p></p>
<p>The grounding of the concept of tenancy by the entirety in the union
of person in husband and wife in marriage was eloquently articulated by
the Court of Appeals in <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Bertles v. Nunan,</i> 92 NY 152 (1883)</a>:</p>
<blockquote>By the common law, when land was conveyed to husband and
wife they did not take as tenants in common, or as joint tenants, but
each became seized of the entirety, <i>per tout, et non per my,</i> and
upon the death of either the whole survived to the other. The survivor
took the estate, not by right of survivorship simply, but by virtue of
the grant which vested the entire estate in each grantee. During the
joint lives the husband could, for his own benefit, use, possess and
control the land, and take all the profits thereof, and he could
mortgage and convey an estate to continue during their joint lives, but
he could not make any disposition of the land that would prejudice the
right of his wife if she survived him.</blockquote>
<blockquote>This rule is based upon the unity of husband and wife, and
is very ancient. It must have had its origin in the archaic period of
our race, and it colored all the relations of husband and wife to each
other, to the law and to society. In 1 Blackst. Com. 442, the learned
author says: "Upon this principle, of an union of person in husband and
wife, depend all the legal rights, duties and disabilities that either
of them acquired by the marriage. I speak not, at present, of the rights
of property, but of such as are merely personal. For this reason a man
cannot grant any thing to his wife or enter into covenant with her; for
the grant would be to suppose her separate existence, and to covenant
with her would be only to covenant with himself." They were not allowed
to give evidence against each other, mainly because of the union of
person, for if they were admitted to be witnesses for each other they
could contradict one maxim of the law, <i>nemo in propria causa testis esse debet</i>; and if against each other they would contradict another maxim, <i>nemo tenetur se ipsum accusare.</i></blockquote>
<p><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Bertles v. Nunan, supra,</i> 92 NY at 156-157</a>.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[4]" name="r[4]">[4]</a></sup></p>
<p>As the Court of Appeals subsequently recognized in <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=15866367806211255315&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Hiles v. Fisher,</i> 144 NY 306 (1895),</a> the husband's common law right to full control of land held via tenancy by the entirety with his spouse is <i>not</i>
incident to the concept of a tenancy by the entirety—which is governed
by a principle of equality of estate as between husband and wife—but
derives instead from "the general principle of the common law which
vested in the husband <i>jure uxoris</i> the rents and profits of his wife's lands during their joint lives. (2 Kent Com. 130; Stewart on Husb. & Wife, §308)." <i>See, id.,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=15866367806211255315&q=JH+v+CH&hl=en&as_sdt=4,33">144 NY at 313-314</a>. In other words, the common law doctrines of tenancy by the entirety and <i>jure uxoris</i>
are conceptually distinct, such that with the legal demise of a
husband's right to control his wife's property the Court of Appeals
recognized, in <a href="https://scholar.google.com/scholar_case?case=16848509382626569548&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Goldman v. Goldman,</i> 95 NY2d 120 (2000),</a> that "[a]s tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by property." <i>Id.,</i>
at 122. However, the ongoing evolution of married women's rights to
property and otherwise, grounded in a recognition of the wife's separate
legal identity, has over the course of time fundamentally altered the
nature and legal incidents of the union of person in husband and wife in
marriage upon which the tenancy by the entirety is founded.</p>
<p>In the 19th century, by a series of statutes including the Married
Woman's Property Acts of 1848 (ch. 200), 1849 (ch. 375), 1860 (ch. 90),
and 1862 (chs. 72 and 172), New York altered "the union of person in
husband and wife" by:</p>
<blockquote>• In 1848, "secur[ing] to married women the enjoyment of
their real and personal property which belonged to them at the time of
their marriage, or which they might thereafter acquire by gift, grant or
bequest from third persons, and [ ] abrogate[ing] the common-law right
of the husband in and to the real and personal property of the wife." <i>See, </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=15866367806211255315&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Hiles v. Fisher, supra,</i> 144 NY at 314</a>. <i>See also, </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=6411527370450784873&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Darby v. Callaghan,</i> 16 NY 71, 75-76 (1857)</a>.</blockquote>
<blockquote>• In 1849, giving married women express authority "to grant or dispose of her property." <i>See, </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Bertles v. Nunan, supra,</i> 92 NY at 159</a>. <i>See also, </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=6411527370450784873&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Darby v. Callaghan, supra</i></a><i>.</i></blockquote>
<blockquote>• In 1860, "empower[ing] a married woman to perform labor
and to carry on business on her separate account; to enter into
contracts in reference to her separate real estate; to sue and be sued
in all matters having relation to her property, and to maintain actions
for injuries to her person." <i>See, </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Bertles v. Nunan, supra</i></a><i>.</i></blockquote>
<blockquote>• In 1867, providing that "husband and wife could, in civil actions, be compelled to give evidence for or against each other." <i>See, id.,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33">92 NY at 160</a>.</blockquote>
<blockquote>• In 1876, providing that "they could, in criminal proceedings, be witnesses for and against each other." <i>See, id.</i></blockquote>
<p>In each of those measures the State recognized the separate
personhood of husband and wife as opposed to "the union of person in
husband and wife" as described in <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1374143891066269738&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Bertles v. Nunan, supra</i></a><i>.</i>
This process continued apace until, in 1980, the U.S. Supreme Court
could state that "[n]owhere in the common-law world—indeed in any modern
society" is a woman denied "a separate legal identity." <i>See, </i><a href="https://scholar.google.com/scholar_case?case=13654002421155286594&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Trammel v. United States,</i> 445 U.S 40, 52 (1980)</a> (abrogating spouses' common law testimonial privilege). Since 1977, when <i>Khan v. Khan</i>
was decided, courts have continued to draw out the implications of
spouses' separate legal personhood. In 1984, for example, the Court of
Appeals—observing that New York had long ago rejected the common law
doctrine that a married woman's legal existence is "incorporated and
consolidated into that of the husband" (<i>see,</i> 1 Blackstone's Commentaries [1966 ed.], p. 430)—abrogated the husband's "marital exemption" from liability for rape. <i>See, </i><a href="https://scholar.google.com/scholar_case?case=1399209540378549726&q=JH+v+CH&hl=en&as_sdt=4,33"><i>People v. Liberta,</i> 64 NY2d 152, 164 (1984)</a>.</p>
<p>This dilution of the legal fiction of the union of person in husband
and wife in marriage set the stage for a wholesale revision post-<i>Khan</i>
of New York matrimonial law, including the Equitable Distribution Law
(1980), "No Fault" divorce (2010), and the Automatic Orders (2009). To
those we now turn.</p>
<p></p><h2>C. The Impact of the Equitable Distribution Law, "No Fault" Divorce, and the Automatic Orders</h2><p></p>
<p></p><h2>1. The Equitable Distribution Law</h2><p></p>
<p>"Chapter 281 of the Laws of 1980, enacted on June 19, 1980, achieved a
major and dramatic overhaul of the New York statutes which govern the
economic life of the family and measure the rights and obligations of
family members upon dissolution of the family unit . . . With the
enactment of the Equitable Distribution Law, the marriage relationship
[is] viewed, more modernly, as an economic partnership. `Upon its
dissolution, property accumulated during the marriage should be
distributed in a manner which reflects the individual needs and
circumstances of the parties regardless of the name in which such
property is held.' (Governor's Memorandum of Approval, McKinney's 1980
Session Laws, p. 1863)." McKinney's Cons. Laws of NY, Vol. 14, DRL §236,
Practice Commentaries (Scheinkman), p. 32 (2010).</p>
<p>Thus, the Equitable Distribution Law worked a sea-change in the legal
status of the marital relationship. It defines the unity of husband and
wife in marriage as consisting not in a "union of person" but rather in
an "economic partnership"; and it relegates claims grounded in title to
property to secondary status, providing instead for equitable
distribution of the economic fruits of that partnership, that is, of
what the statute calls "marital property":</p>
<blockquote>The term "marital property" shall mean all property acquired by either or both spouses during the marriage and <i>before . . . the commencement of a matrimonial action,</i> regardless of the form in which title is held . . .</blockquote>
<p>DRL §236B[1][c]. In other words, under the Equitable Distribution
Law, that which constitutes the union of husband and wife in
marriage—the economic partnership—is deemed to have ended <i>upon commencement of a matrimonial action.</i> Recalling <i>Kahn,</i>
"anything that terminates the legal fiction of the unity of two
separate persons ought to have an effect upon the estate [i.e., the
tenancy by the entirety] whose creation depended upon such unity." <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn,</i> 43 NY2d at 207</a> (quoting <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=10388540934873783716&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Stelz v. Shreck, supra,</i> 128 NY at 267</a>).
Commencement of a matrimonial action terminates the legal fiction of
unity as defined by the Equitable Distribution Law. When the prevailing
legal framework has so radically changed, why should ancient concepts of
title continue to prevent a <i>pendente lite</i> court-ordered sale of marital premises to advance the goals of the Equitable Distribution Law? Per <i>Khan</i> itself, the continuing viability of a tenancy by the entirety post-commencement is seriously in question.</p>
<p></p><h2>2. "No Fault" Divorce</h2><p></p>
<p>The seeds of "no fault" divorce were first planted in New York in
1966. Upon a legislative determination that "dead marriages . . . should
be terminated for the mutual protection and well being of the parties
and, in most instances, their children," DRL §170 was amended to provide
for "no-fault" dissolution of marriage upon the parties' living apart
for a prescribed period pursuant to an agreement or a judgment of
separation. <i>See, </i><a href="https://scholar.google.com/scholar_case?case=9631242375689840018&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Covington v. Walker,</i> 3 NY3d 287, 290 (2004)</a> (quoting 1966 Report of the Joint Leg. Comm. on Matrimonial and Family Laws); <a href="https://scholar.google.com/scholar_case?case=4289957463746278509&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Gleason v. Gleason,</i> 26 NY2d 28, 39 (1970)</a>;
DRL §170, subd. 5 and 6. Although permitting divorce on a "no fault"
basis, the 1966 reform respected the unity of spouses in marriage, as it
required either (1) the <i>agreement of both spouses</i> that their
marriage was no longer viable, and/or (2) objective evidence, i.e., the
parties' living apart for a substantial period of time without
reconciling, that the marriage was truly dead. This was the legal
framework in place in 1977, when <i>Khan v. Khan</i> was decided.</p>
<p>On this score, too, a post-<i>Khan</i> sea-change in the law has
occurred. In 2010, DRL §170 was again amended to provide for "no fault"
dissolution of marriage where:</p>
<blockquote>7. The relationship between husband and wife has broken down irretrievably for a period of at least six months, <i>provided that one party has so stated under oath.</i>
No judgment of divorce shall be granted under this subdivision unless
and until the economic issues of equitable distribution of marital
property, the payment or waiver of spousal support, the payment of child
support, the payment of counsel and experts' fees and expenses as well
as the custody and visitation with the infant children of the marriage
have been resolved by the parties, or determined by the court and
incorporated into the judgment of divorce.</blockquote>
<p>The plaintiff spouse's averment to an "irretrievable breakdown" is
uncontestable and establishes the cause of action for divorce as a
matter of law. <i>See, </i><a href="https://scholar.google.com/scholar_case?case=3788505073692624294&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Hoffer-Adou v. Adou,</i> 121 AD3d 618, 619 (1st Dept. 2014)</a>; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=4646726109428564677&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Palermo v. Palermo,</i> 35 Misc 3d 1211(A)</a> (Sup. Ct. Monroe Co. 2011), <i>aff'd</i> <a href="https://scholar.google.com/scholar_case?case=461951385351928515&q=JH+v+CH&hl=en&as_sdt=4,33">100 AD3d 1453 (4th Dept. 2012)</a>.</p>
<p>The unity of spouses in marriage is brittle indeed if one spouse may
unilaterally and by unchallengeable fiat declare that the marriage is at
an end. In the absence of any defense to a DRL §170(7) cause of action,
divorce is essentially automatic. Here, the Complaint contains the
requisite assertion of irretrievable breakdown (NYSCEF Doc. # 2), and
despite Defendant's denial thereof his counterclaim contains the exact
same allegation (NYSCEF Doc. # 7, ¶ 4), which Plaintiff admitted in her
Reply (NYSCEF Doc. # 79 ¶1). The parties have stipulated that grounds
for divorce are resolved and that Plaintiff shall obtain a "no fault"
divorce pursuant to DRL §170(7) (Preliminary Conference Stipulation,
NYSCEF Doc. # 19, p.2). The divorce is all but inevitable, and the entry
of a judgment of divorce pursuant to DRL §170(7) is a formality. Once
again recalling <i>Kahn,</i> "anything that terminates the legal fiction
of the unity of two separate persons ought to have an effect upon the
estate [i.e., the tenancy by the entirety] whose creation depended upon
such unity." <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn,</i> 43 NY2d at 207</a>.
The legal fiction of unity as defined by the Equitable Distribution Law
having been shattered by commencement of a matrimonial action, and one
party's uncontestable declaration that an irretrievable breakdown has
occurred having rendered the marriage "dead" in the eyes of the "No
Fault" divorce law and the divorce inevitable, the reasoning of <i>Khan</i> itself dictates that a tenancy by the entirety is at this juncture no longer viable.</p>
<p>On a further note, as the Court of Appeals observed in <i>Kahn,</i> a
formal dissolution of the marriage bond is not necessarily required
before a tenancy by the entirety may be severed: the Court acknowledged
that a decree of separation was sufficient, all the while recognizing
that "a separation decree does not dissolve the marriage." <i>See id.,</i> <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33">43 NY2d at 207</a>.
In other contexts, formal entry of judgment of divorce has been reduced
to a ministerial act with no practical consequence on property rights. <i>See, </i><a href="https://scholar.google.com/scholar_case?case=2549150085740696868&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Cornell v. Cornell,</i> 7 NY2d 164, 171 (1959)</a> (permitting entry of divorce <i>nunc pro tunc</i> so long as rights vested in the interim are not affected). <i>See also, </i><a href="https://scholar.google.com/scholar_case?case=3270454367678385593&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Lynch v. Lynch,</i> 13 NY2d 615 (1963)</a>; <a href="https://scholar.google.com/scholar_case?case=14954338935387995036&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Brown v. Brown,</i> 208 AD2d 485 (2d Dept. 1994)</a>; <a href="https://scholar.google.com/scholar_case?case=6512446817954914745&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Van Pelt v. Van Pelt,</i> 172 AD2d 659 (2d Dept. 1991)</a>.
To be sure, the entry of judgment pursuant to DRL §170(7) may not be
regarded as a pure formality, as the statute itself provides that
judgment may not be granted on the grounds of "irretrievable breakdown"
unless and until issues of equitable distribution, maintenance, child
custody and visitation, child support, and counsel and expert fees have
been resolved by the parties or determined by the court and incorporated
in the judgment. <i>See, id. Cf., </i><a href="https://scholar.google.com/scholar_case?case=8882915028436697367&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Matter of Forgione,</i> 237 AD2d 438 (2d Dept. 1997)</a>.
The conclusion nevertheless obtains that, the parties having commenced
divorce proceedings and stipulated to a "No Fault" divorce—thereby
eviscerating the unity of person in husband and wife in marriage
underlying a tenancy by the entirety, there would appear to be no reason
to delay a legal severance of the tenancy where a balancing of the
equities would dictate a sale of the marital residence <i>pendente lite</i> to avoid financial hardship for the family and/or to preserve marital assets for equitable distribution.</p>
<p>A few New York courts have already reached that very conclusion. <i>See, </i><a href="https://scholar.google.com/scholar_case?case=14639052755220762650&q=JH+v+CH&hl=en&as_sdt=4,33"><i>D.R.D. v. J.D.D., supra,</i> 74 Misc 3d 237 (Sup. Ct. Monroe Co. 2021)</a>; <i>Stratton v. Stratton,</i> 39 Misc 3d 1230(A) (Sup. Ct. Sullivan Co. 2013); <a href="https://scholar.google.com/scholar_case?case=7563541103981833748&q=JH+v+CH&hl=en&as_sdt=4,33"><i>St. Angelo v. St. Angelo,</i> 130 Misc 2d 583 (Sup. Ct. Suffolk Co. 1985)</a>. For reasons shown above, this Court concurs with Justice Dollinger in <a href="https://scholar.google.com/scholar_case?case=14639052755220762650&q=JH+v+CH&hl=en&as_sdt=4,33"><i>D.R.D. v. J.D.D., supra</i></a><i>,</i> that "the facts underlying and justifying the decision in <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a><i>,</i> are significantly undercut by the enactment of equitable distribution and no-fault divorce under [DRL] Section 170(7)." <i>Id.,</i> <a href="https://scholar.google.com/scholar_case?case=14639052755220762650&q=JH+v+CH&hl=en&as_sdt=4,33">74 Misc 3d at 246</a>. Justice Dollinger nevertheless struggled to evade the impact of <i>Khan.</i> He wrote:</p>
<blockquote>[C]ontinued adherence to the Court of Appeals' directive in <i>Khan v. Khan</i> exposes an anomaly in New York marital law. Under <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a><i>,</i>
a trial court cannot balance the equities of all the family—children
included—in deciding whether to sell the marital residence while a
no-fault divorce is pending but the same court can balance the same
equities in deciding exclusive use and possession of the property during
the pendency<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[5]" name="r[5]">[5]</a></sup> and can apply the same equitable factors in the judgment of divorce or any post-judgment decision.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[6]" name="r[6]">[6]</a></sup>
It is illogical that the New York trial courts would have broad powers
to balance the equities of a family to decide possession of property
during a divorce, ownership of the property after the divorce but not
have the power, when balancing the same equities, to order a sale during
the pendency of the divorce. The equitable factors in play during the
divorce—the cost of maintaining and staying in the house, the financial
strain on either spouse or the family overall, the impact of mortgage
and tax costs, the income tax consequences of keeping the house and who
gets the tax benefits, the consequences to and need for stability for
the children, the availability of reasonable alternative housing for any
displaced spouse—are the same factors that New York matrimonial courts
have weighed in the four decades since equitable distribution. Rather
than straining to find an agreement in a long-delayed divorce—the case
in <i>Taglioni v. Garcia</i><sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[7]" name="r[7]">[7]</a></sup> —or await a ruinous foreclosure—the case in <i>A.P. v. F.L.</i><sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#[8]" name="r[8]">[8]</a></sup>
—or pump family resources into a residence that is underwater and
draining family finances—the case in this instance—New York matrimonial
courts should have the power to balance the equities of a potential sale
during the pendency of a no-fault divorce. This Court is not suggesting
that the sluice gates for sales of marital property pendente lite be
opened willy-nilly but, because the Legislature vested broad equitable
powers to matrimonial judges under equitable distribution, those powers
should permit a sale of a marital residence during the pendency if a
balancing of well-known and often easily defined equities favor that
result in the best interests of the family.</blockquote>
<p><a href="https://scholar.google.com/scholar_case?case=14639052755220762650&q=JH+v+CH&hl=en&as_sdt=4,33"><i>D.R.D. v. J.D.D., supra,</i> 74 Misc 3d at 253-254</a>.</p>
<p>This Court concurs with Justice Dollinger's analysis, so far as it
goes, but further believes that his conclusion that a matrimonial court
is empowered despite <i>Khan</i> to order the <i>pendente lite</i> sale of the marital home is substantially bolstered by the post-<i>Khan</i> enactment of the Automatic Orders in 2009. To that we now turn.</p>
<p></p><h2>3. The Automatic Orders</h2><p></p>
<p>In 2009, the Equitable Distribution Law was amended to incorporate
"Automatic Orders" regulating the disposition of matrimonial litigants'
property <i>pendente lite. See,</i> DRL §236B(2)(b)(1-5). Prior to 2009,
the matrimonial court's authority to deal with property during the
course of divorce proceedings and prior to judgment was located in DRL
§234, which, per <i>Khan v. Khan,</i> does not permit the severance of a tenancy by the entirety <i>pendente lite. See id.,</i> <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33">43 NY2d at 208-210</a>.
In the pre-Equitable Distribution era this reading of DRL §234 served a
salutary purpose. Husbands typically had a significant economic
advantage over non-working wives, maintenance and child support
guidelines did not exist, and the pre-judgment sale of a marital
residence held by the spouses as tenants by the entirety could seriously
jeopardize the economic security and well-being of the wife and
children.</p>
<p>However, with the advent of the Equitable Distribution Law, as Judge
Scheinkman has pointed out, the Automatic Orders have effectively
superseded DRL §234: "the key statutory provision is no longer Section
234, the general authority for the matrimonial court to deal with
property, but in the Equitable Distribution Law itself." <i>See,</i>
McKinney's Cons. Laws of NY, Vol. 14, DRL §236, Practice Commentaries
(Scheinkman), C236B:48, p. 328 (2010). The Automatic Orders impose
serious restraints on the parties' <i>pendente lite</i> disposition of property so as "to prevent both parties from dissipating assets, [and] incurring unreasonable debts" (<i>see,</i>
Memorandum in Support of Legislation). By the same token, the Orders
afford the matrimonial court enhanced flexibility to deal with property
prior to judgment to address those same issues and to promote the
purposes of the Equitable Distribution Law. DRL §236B(2)(b)(1) provides:</p>
<blockquote>Neither party shall sell, transfer, encumber, conceal,
assign, remove or in any way dispose of, without the consent of the
other party in writing, or by order of the court, any property
(including, but not limited to, real property, cash accounts, stocks,
mutual funds, bank accounts cars and boats) individually or jointly held
by the parties, except in the usual course of business, for customary
and usual household expenses or for reasonable attorney's fees in
connection with this action.</blockquote>
<p>While framed in the negative as a restriction on the parties, Section
236B(2)(b)(1) plainly contemplates the admissibility of a court order
directing the sale <i>pendente lite</i> of real property jointly held by the spouses. The Legislature was presumably aware of <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a>
when it enacted the Automatic Orders in 2009 yet did not exempt
tenancies by the entirety and indeed placed no restriction on the kinds
of estates in real property potentially subject to court-ordered sale
pursuant to Section 236B(2)(b)(1). To construe the Automatic Orders as a
liberation from the constraints of <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a>
would assist the matrimonial court in mitigating the financial
exigencies encountered by families enmeshed in divorce litigation, often
for a period of years, and promote the salutary goals of the Equitable
Distribution Law.</p>
<p>In this case, the mortgage on the marital residence is not being paid
and if matters are allowed simply to take their course a foreclosure
and the loss of whatever equity the parties may have in their home is
inevitable. A sale <i>pendente lite</i> is needed to prevent the ongoing
dissipation of assets and accumulation of unreasonable debt, and to
preserve marital property—the equity in the home—for equitable
distribution. The Court has the authority to determine whether the terms
of a proposed sale are appropriate, to direct the disposition of the
proceeds of sale in the best interest of the parties, and to take steps
to alleviate any hardship resulting from the pre-judgment severance of
the tenancy by the entirety and loss of the marital home.</p>
<p></p><h2>D. Conclusion</h2><p></p>
<p>The Court invokes its authority under DRL §236B(2)(b)(1) and orders a
sale of the marital residence based on the circumstances presented and
the needs of the parties. The property shall be listed for sale with a
broker who participates in a Multiple Listing Service, and the parties
shall accept any offer within ten (10%) percent of the asking price.
Both parties shall cooperate with the broker and the house shall be
maintained as ready for sale. The net proceeds of sale, after payment of
the usual and customary expenses and closing costs, shall be escrowed
pending further order of the Court.</p>
<p>In view of <a href="https://scholar.google.com/scholar_case?case=10250230407100145953&q=JH+v+CH&hl=en&as_sdt=4,33"><i>Kahn v. Kahn</i></a>
the Court does not adopt this course of action lightly. However,
inasmuch as the exigencies as they exist militate strongly in favor of a
prompt sale, the Court declines to stay its Decision and Order pending
application, if any, to the Appellate Division.</p>
<p>IT IS SO ORDERED.</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[1]" name="[1]">[1]</a> It must be stressed from the outset that the Court addresses itself only to the "<i>legal</i> fiction" of the union of person in husband and wife in marriage.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[2]" name="[2]">[2]</a>
Although the Loan Modification required an acceptance on or before a
specific date, now passed, the Court was advised that the deadline had
been extended. The Court in any event does not view the issue as moot as
it is readily capable of repetition.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[3]" name="[3]">[3]</a>
The moving papers do not explain how the unemployed Defendant, who
owes arrears in child support and maintenance, will be able to pay
$5,441.36 per month, nor is there any explanation why a bank would enter
into a loan agreement with a borrower without apparent means to repay.
The Court declines to speculate, but notes that while the motion has
been <i>sub judice</i> Defendant became employed at an annual salary of
$150,000. He recently submitted a projected net income for 2024 of
$114,139, and projected expenses for 2024 of $106,774 exclusive of
income or property taxes. It remains improbable that he could carry the
proposed mortgage.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[4]" name="[4]">[4]</a> Sir William Blackstone cited a 15th century definition of tenancy by the entirety from Sir Thomas Littleton:
</p><p>[I]f and estate be given to a man and his wife, they are neither
properly joint-tenants, nor tenants in common: for husband and wife
being considered as one person in law, they cannot take the estate by
moieties, but both are seised of the entirety <i>per tout et non per my</i>
[by the whole and not by a share, moiety, or divisible part]; the
consequence of which is, that neither the husband nor the wife can
dispose of any part without the assent of the other, but the whole must
remain to the survivor.</p>
<p>2 William Blackstone, <i>Commentaries on the Laws of England</i> 181 (1765), quoted in Richard R. Powell, <i>The Law of Real Property</i> ¶620 (1991).</p><p></p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[5]" name="[5]">[5]</a>
Pursuant to DRL §§ 234 and 236B(5)(f), the court is specifically
authorized to direct the use and occupancy of the marital home <i>pendente lite</i> "without regard to the form of ownership of such property."</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[6]" name="[6]">[6]</a>
Pursuant to DRL §236B(5)(a, c, d), the court is specifically
authorized to distribute marital property (including the marital home)
equitably between the parties and to provide for the disposition thereof
in the final judgment.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[7]" name="[7]">[7]</a> 200 AD3d 44 (1st Dept. 2021).</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=1779805914245110807&q=JH+v+CH&hl=en&as_sdt=4,33#r[8]" name="[8]">[8]</a> 57 Misc 3d 1223(A) (Sup. Ct. Queens Co. 2017)."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-34538051645590946382024-02-26T06:57:00.001-05:002024-02-26T06:57:28.821-05:00DIVISION SPLIT ON PRIVATE CAUSE OF ACTION UNDER LABOR LAW 198<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/4d28/hammer_horizontal_court_justice_2.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="600" data-original-width="800" height="600" src="https://free-images.com/lg/4d28/hammer_horizontal_court_justice_2.jpg" width="800" /></a></div><br />Grant v. GLOBAL AIRCRAFT DISPATCH, INC., 2024 NY Slip Op 183 - NY: Appellate Div., 2nd Dept. 2024:<p></p><p>"In <a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC</i> (175 AD3d 1144),</a>
the Appellate Division, First Department, considered the question now
before this Court—whether Labor Law § 198(1-a) expressly provides a
private right of action for a manual worker paid on a biweekly basis in
violation of Labor Law § 191(1)(a) to recover liquidated damages,
interest, and attorneys' fees. The First Department determined that such
a private right of action exists, concluding that the "wage claim[s]"
to which section 198 refers include not only instances of nonpayment or
partial payment of wages, but also late payment of wages (<i>see </i><a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1145-1146</a>).
The First Department reasoned that "[t]he moment that an employer fails
to pay wages in compliance with section 191(1)(a), the employer pays
less than what is required," thereby permitting recovery for
underpayment under section 198(1-a) (<a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1145</a>).
The First Department, as the plaintiff does here, equated the biweekly
pay schedule with a violation and cure, the cure serving merely as an
affirmative defense, which could not "eviscerate the employee's
statutory remedies" (<i>id.</i>).</p>
<p>We respectfully disagree with the reasoning of <i>Vega</i> and
decline to follow it. The plain language of Labor Law § 198(1-a)
supports the conclusion that this statute is addressed to nonpayment and
underpayment of wages, as distinct from the frequency of payment (<i>see </i><a href="https://scholar.google.com/scholar_case?case=2653647691762391553&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Gutierrez</i> <i>v Bactolac Pharm., Inc.,</i> 210 AD3d 746, 747</a>), and we do not agree that payment of full wages on the regular biweekly payday constitutes nonpayment or underpayment.</p>
<p>The first sentence of Labor Law § 198(1-a) refers to an employee being "paid <i>less</i> than the <i>wage</i>
to which he or she is entitled" (emphasis added). "Wages" is defined as
"the earnings of an employee for labor or services rendered" (<i>id.</i>
§ 190[1]). The natural import of this phrase, as well as the later,
related reference to an employee recovering "the full amount of any <i>underpayment</i>" (<i>id.</i>
§ 198[1-a] [emphasis added]), is that an employee has received a lesser
amount of earnings than agreed upon, not that the employee received the
agreed-upon amount one week later, on the regular payday.</p>
<p>Moreover, acknowledging that he was paid his wages in full, the
plaintiff here seeks only liquidated damages (as well as interest and
attorneys' fees). However, section 198(1-a) provides for liquidated
damages as an "additional amount," clearly contemplating recovery of an
underpayment as the primary, foundational remedy. In other words, under
the statute as written, the recovery of liquidated damages is dependent
upon the recovery of an underpayment. Thus, absent an underpayment or
nonpayment, liquidated damages are not available. While we agree with
the proposition set forth by our dissenting colleague that "[m]oney
later is not the same as money now" (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a>
*1, 2022 US Dist LEXIS 234643, *3 [ED NY, No. 2:22-cv-02861-BMC]
[internal quotation marks omitted]), or, in other words, that late
payment is injurious to workers, we nevertheless are bound to "give
effect to the plain meaning of [the] words used" in the statute and may
not "legislate under the guise of interpretation" (<a href="https://scholar.google.com/scholar_case?case=15271772377042644050&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>People v Finnegan,</i> 85 NY2d 53, 58</a> [internal quotation marks omitted]).</p>
<p>The First Department's reasoning that the "moment an employer fails
to pay wages in compliance with section 191(1)(a), the employer pays
less than what is required" (<a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1145</a>), seems to be based upon the premise that a payment was <i>due</i>
after the first week of the biweekly pay period and that the employer
therefore failed to pay the wages due after that first week. However,
where an employer uses a regular biweekly pay schedule, that employer's
payment of wages is due, under the employment agreement between the
employer and an employee, every two weeks. Such an agreed-upon pay
schedule between an employer and a manual worker violates the frequency
of payments requirement (<i>see</i> Labor Law § 191[2]), but is not
equivalent, in our view, with a nonpayment or underpayment of wages
subject to collection with an additional assessment of liquidated
damages. The employer's payment of full wages on the regular payday is
crucial and distinguishes this case from federal cases under the Fair
Labor Standards Act in which courts have concluded that employers were
liable for liquidated damages for violating the prompt payment
requirement implied in that law by, for example, paying overtime
compensation two years after it was earned (<i>see </i><a href="https://scholar.google.com/scholar_case?case=15910993668807425956&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Brooklyn Savings Bank v O'Neil,</i> 324 US 697, 700, 707-708</a>), or failing to pay on the regular payday (<i>see </i><a href="https://scholar.google.com/scholar_case?case=13671284062814022750&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Biggs v Wilson,</i> 1 F3d 1537, 1538</a> [9th Cir]; <i>cf. </i><a href="https://scholar.google.com/scholar_case?case=15309304820803123512&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Rogers v City of Troy, N.Y.,</i> 148 F3d 52, 55-57</a> [2d Cir]).</p>
<p>As to the string of federal cases relied upon by our dissenting
colleague to support the conclusion that Labor Law § 198(1-a) provides
an express private right of action for a violation of section 191, those
cases merely adopted the holding of <i>Vega</i> as the only appellate-level state law on point (<i>see e.g. </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a> *6, 2022 US Dist LEXIS 234643, *14; <i>Confusione v Autozoners, LLC,</i> 2022 WL 17585879, 2022 US Dist LEXIS 223438 [ED NY, No. 21-CV-00001 (JMA) (AYS)]; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=14303127571979040044&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Mabe v Wal-Mart Assoc., Inc.,</i> 2022 WL 874311,</a>
*1, 2022 US Dist LEXIS 53492, *3 [ND NY, No. 1:20-cv-00591] ["As a
federal court applying state law, we are generally obliged to follow the
state law decisions of state intermediate appellate courts . . . in the
absence of any contrary New York authority or other persuasive data
establishing that the highest court of the state would decide otherwise"
(internal quotation marks omitted)]). Thus, these federal decisions
provide little substantive support for the reasoning and determination
set forth in <i>Vega.</i> Indeed, while concluding that they were bound to adopt <i>Vega,</i> some of these courts expressed doubt as to the correctness of that decision (<i>see </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a> *4-6, 2022 US Dist LEXIS 234643, *10-14; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=15076671807644972925&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Espinal v Sephora USA, Inc.,</i> 2022 WL 16973328,</a> *5-6, 2022 US Dist LEXIS 208400, *11-14 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)], <i>report and recommendation adopted by</i> 2023 WL 2136392, 2023 US Dist LEXIS 28661 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)]; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=9853953777028433238&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Harris v Old Navy, LLC,</i> 2022 WL 16941712,</a> *7, 2022 US Dist LEXIS 206664, *18 [SD NY, No. 21 Civ. 9946 (GHW) (GWG)], <i>report and recommendation adopted by</i> 2023 WL 2139688, 2023 US Dist LEXIS 28419 [SD NY, No. 1:21-cv-9946-GHW]).</p>
<p>Notably, after the First Department decided <i>Vega,</i> the Court of Appeals decided <a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.</i> (38 NY3d 38),</a>
in which it declined to conclude that an employer's violation of the
prohibition against requesting or demanding a "return, donation or
contribution" of any part of an employees' wages (i.e., kickbacks)
(Labor Law § 198-b[2]) constituted a wage claim within the meaning of
Labor Law § 198(1-a) (<i>see </i><a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.,</i> 38 NY3d at 44</a>).
Thus, the mere fact that a violation of the Labor Law had the effect of
reducing employees' wages (even permanently) did not bring that Labor
Law violation under the auspices of Labor Law § 198(1-a), which covers
nonpayment and partial payment of wages.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=15190619814081598490&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33#[1]" name="r[1]">[1]</a></sup></p>
<p>Interpreting Labor Law § 198(1-a) as covering nonpayment and partial
payment of wages, as distinct from the frequency-of-pay violation
alleged here, is consonant with its legislative history. Subdivision 1
of section 198—permitting an additional award of costs, above ordinary
costs, in an action instituted upon a wage claim by an employee or the
Commissioner—was added in 1937, along with provisions allowing employees
to assign wage claims to the Commissioner (<i>see</i> L 1937, ch 500).
The legislation was aimed at easing the burden on and expense to
employees (as well as the Legal Aid Society, which often represented
them) of instituting actions to collect on small wage claims (<i>see</i>
Letter from George Lion Cohen, Bill Jacket, L 1937, ch 500 at 4-5). It
essentially empowered the Commissioner to take assignment of private
causes of action (alleging breach of contract) already possessed by the
employees, not created by statute.</p>
<p>In 1967, section 1-a was added, allowing an employee or the
Commissioner to obtain reasonable attorneys' fees in wage collection
actions and requiring employers to pay an additional amount of
liquidated damages if the employer's failure to pay the wage was willful
(<i>see</i> L 1967, ch 310). As explained at the time of its enactment:
"A failure or refusal to pay any employee his wages and to put him to
the trouble of hiring an attorney to pursue the payment of wages or to
impose upon the public to pursue this type of claim through the courts
is action that can only merit public condemnation" (Rep of Comm on Labor
Law, Bill Jacket, L 1967, ch 310 at 10). The fact that recovery was
limited to "the amount of such underpayment," without liquidated
damages, was deemed to have encouraged employers "to violate the statute
in the expectation that if they [were] caught, their sole obligation
[would] be to pay the back wages without interest" (Mem of Industrial
Commissioner, Bill Jacket, L 1967, ch 310 at 4).</p>
<p>The willfulness requirement for liquidated damages was replaced in
2009 so as to place the burden upon employers to show good faith, and
the Commissioner was given the authority "to bring a court action or
administrative proceeding to collect wage underpayments" (Assembly Mem
in Support, Bill Jacket, L 2009, ch 372 at 5). The purpose of those
amendments was to benefit "low-wage workers struggling to support their
families on the minimum wage" in the "many cases" in which "employers
[had] failed for years to pay even the well-publicized minimum wage
rate" (<i>id.</i> at 6). Finally, Labor Law § 198(1-a) was further
amended in 2010, as part of the Wage Theft Prevention Act, to increase
the amount of liquidated damages and to require courts to allow
employees "to recover the full amount of any underpayment" (L 2010, ch
564, § 7). The bill was necessary, the New York State Department of
Labor explained, because "[c]urrent penalties for wage theft [were] so
low that there [was] a financial incentive to underpay workers . . . [,]
creat[ing] an environment in which a large number of employees in the
state [were] earning less than minimum wage . . . while others [were]
paid less than their agreed-upon wage" (Letter from NY St Dept of Labor,
Bill Jacket, L 2010, ch 564 at 9).</p>
<p>In sum, this legislative history reveals that Labor Law § 198(1-a)
was aimed at remedying employers' failure to pay the amount of wages
required by contract or law. There is no reference in the legislative
history of Labor Law § 198 to the frequency or timing of wage payments,
and nothing to suggest that the statute was meant to address
circumstances in which an employer pays full wages pursuant to an
agreed-upon, biweekly pay schedule that nevertheless does not conform to
the frequency of payments provision of law.</p>
<p>Accordingly, we conclude that Labor Law § 198 does not expressly
provide for a private right of action to recover liquidated damages,
prejudgment interest, and attorneys' fees where a manual worker is paid
all of his or her wages biweekly, rather than weekly, in violation of
Labor Law § 191(1)(a).</p>
<p>To the extent that the plaintiff contends that such a private right
of action should be implied, we reject that contention. A private right
of action cannot be implied from the statutory provisions and their
legislative history unless, among other factors, "creation of such a
right would be consistent with the legislative scheme" (<a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.,</i> 38 NY3d at 41</a> [internal quotation marks omitted]). In <i>Konkur,</i>
the Court of Appeals concluded that a private right of action to
recover damages for a violation of Labor Law § 198-b, prohibiting
kickbacks, could not be implied because the statutory scheme "expressly
provide[d] two robust enforcement mechanisms, `indicating that the
legislature considered how best to effectuate its intent and provided
the avenues for relief it deemed warranted'" (<a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.,</i> 38 NY3d at 43,</a> quoting <a href="https://scholar.google.com/scholar_case?case=1352573914712194262&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Cruz v TD Bank, N.A.,</i> 22 NY3d 61, 71</a>).
In other words, the Court determined that, "in the face of significant
enforcement mechanisms provided for in the statute," a private right of
action would not be consistent with the legislative scheme (<a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.,</i> 38 NY3d at 42</a>).
Since multiple official enforcement mechanisms for violations of Labor
Law § 191 are similarly provided, we conclude that, under <i>Konkur,</i> a private right of action cannot be implied (<i>see </i><a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.,</i> 38 NY3d at 43</a>).</p>
<p>Consequently, the Supreme Court properly granted that branch of the
defendant's motion which was to dismiss the first cause of action.</p>
<p>In light of our determination, we need not reach the parties' remaining contentions.</p>
<p>IANNACCI, J.P., CHAMBERS and WARHIT, JJ., concur.</p>
<p>CHRISTOPHER, J., concurs in part and dissents in part, and votes to
modify the order, on the law, by deleting the provision thereof granting
those branches of the defendant's motion which were pursuant to CPLR
3211(a)(7) to dismiss the first cause of action insofar as asserted by
the plaintiff individually and so much of the first cause of action as
sought to recover interest on behalf of others similarly situated, and
substituting therefor a provision denying those branches of the motion,
and, as so modified, to affirm the order insofar as appealed from, with
the following memorandum:</p>
<p>I respectfully disagree with the conclusions reached by my colleagues
in the majority to affirm the order insofar as appealed from. In my
view, that branch of the defendant's motion which was pursuant to CPLR
3211(a)(7) to dismiss the first cause of action insofar as asserted by
the plaintiff individually should have been denied, as Labor Law §
198(1-a) expressly provides a private right of action for a violation of
Labor Law § 191, which right may also be implied.</p>
<p>Labor Law § 191, entitled "Frequency of payments," provides, in
pertinent part, that "[a] manual worker shall be paid weekly and not
later than seven calendar days after the end of the week in which the
wages are earned" (<i>id.</i> § 191[1][a][i]). Labor Law § 198(1-a)
provides that: "In any action instituted in the courts upon a wage claim
by an employee or the commissioner in which the employee prevails, the
court shall allow such employee to recover the full amount of any <i>underpayment,</i>
all reasonable attorney's fees, prejudgment interest as required under
the civil practice law and rules, and, unless the employer proves a good
faith basis to believe that its <i>underpayment</i> of wages was in
compliance with the law, an additional amount as liquidated damages
equal to one hundred percent of the total amount of the wages found to
be due" (emphasis added).</p>
<p>This appeal presents the question of whether Labor Law § 198(1-a)
expressly provides a private right of action for a manual worker paid on
a biweekly basis in violation of Labor Law § 191(1)(a) to recover
liquidated damages, interest, and attorneys' fees. The Appellate
Division, First Department, considered this question in <a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC</i> (175 AD3d 1144)</a>
and concluded that such a private right of action exists, and that the
actionable "wage claim[s]" to which Labor Law § 198 refers include not
only instances of nonpayment or partial payment of wages, but also the
late payment of wages (<i>see </i><a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1145-1146</a>).
The First Department determined that, contrary to the defendant
employer's argument that Labor Law § 198 provides remedies only in the
event of nonpayment or partial payment of wages, "the plain language of
[Labor Law § 198(1-a)] indicates that individuals may bring suit for any
`wage claim' against an employer" (<a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1145</a>).
Further, the First Department concluded that "[t]he remedies provided
by section 198(1-a) apply to violations of article 6, and section
191(1)(a) is a part of article 6" (<i>id.</i> [citation and internal quotation marks omitted]).</p>
<p>The <i>Vega</i> court reasoned that "[t]he moment that an employer
fails to pay wages in compliance with section 191(1)(a), the employer
pays less than what is required" (<i>id.</i>). Thus, "the term
underpayment [in section 198(1-a)] encompasses the instances where an
employer violates the frequency requirements of section 191(1)(a) but
pays all wages due before the commencement of an action" (<i>id.</i>).
Further, an employer may not attempt "to cure a violation and evade the
statute by paying the wages that are due before the commencement of an
action" (<i>id.</i>). While an "employer may assert an affirmative
defense of payment if there are no wages for the `employee to recover'
(Labor Law § 198[1-a])," the fact that an employee was paid all the
wages he or she earned "does not eviscerate the employee's statutory
remedies" (<i>id.</i>).</p>
<p>The majority declines to follow the <i>Vega</i> decision and
determines that Labor Law § 198 does not expressly provide a right of
action for a violation of Labor Law § 191(1)(a). Contrary to the <i>Vega</i>
decision, the majority reasons that where an employer uses a regular
biweekly pay schedule, such an agreed-upon pay schedule between an
employer and a manual worker violates the frequency of payments
requirement under Labor Law § 191(2), but is not equivalent to a
nonpayment or underpayment of wages permitting recovery under Labor Law §
198(1-a).</p>
<p>I respectfully disagree. In my view, the late payment of wages is
tantamount to a nonpayment or underpayment of wages, which permits
recovery under Labor Law § 198(1-a). "`Money later is not the same as
money now'" (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a> *1, 2022 US Dist LEXIS 234643, *3 [ED NY, No. 2:22-cv-02861-BMC], quoting <a href="https://scholar.google.com/scholar_case?case=4271695470862629498&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Stephens v U.S. Airways Group, Inc.,</i> 644 F3d 437, 442 [DC Cir, Kavanaugh, J., concurring]</a>).
"The delay in receiving wages stripped [the] plaintiff[ ] of the
opportunity to use funds to which [he was] legally entitled resulting in
an injury sufficiently analogous to harms traditionally recognized at
common law" (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a>
*1, 2022 US Dist LEXIS 234643, *3 [internal quotation marks omitted]).
"Not having money you're supposed to have means that the time value of
money has decreased" (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a> *2, 2022 US Dist LEXIS 234643, *4).</p>
<p>To the extent that the majority cites to this Court's decision in <a href="https://scholar.google.com/scholar_case?case=2653647691762391553&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Gutierrez v Bactolac Pharm., Inc.</i> (210 AD3d 746)</a>
to support the conclusion that Labor Law § 198(1-a) is addressed to
nonpayment and underpayment of wages, as distinct from the frequency of
payment, such reliance is misplaced. In <i>Gutierrez,</i> this Court
affirmed so much of an order as directed dismissal of a cause of action
alleging violations of Labor Law § 191, wherein the plaintiff was not
claiming a violation regarding frequency of pay, but rather was seeking
to recover damages for unpaid wages. <i>Gutierrez</i> did not determine
that a violation of Labor Law § 191(1)(a) does not result in unpaid
wages or underpaid wages for purposes of whether a private right of
action exists under Labor Law § 198(1-a).</p>
<p>The majority also relies upon the Court of Appeals' decision in <a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.</i> (38 NY3d 38)</a>
to support its conclusion that Labor Law § 198(1-a) does not expressly
provide for a private right of action for a violation of Labor Law §
191. In <i>Konkur,</i> the Court of Appeals held that a private right of
action was unavailable for Labor Law § 198-b claims concerning wage
kickbacks. The Court found that the statute did not provide an express
private right of action, and "no such freestanding private right of
action was intended by the legislature" (<a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.,</i> 38 NY3d at 39</a>). The majority deduces from <i>Konkur</i>
that "the mere fact that a violation of the Labor Law had the effect of
reducing employees' wages (even permanently) did not bring that Labor
Law violation under the auspices of Labor Law § 198(1-a), which covers
nonpayment and partial payment of wages."</p>
<p>I find instructive the reasoning in several federal decisions. "Although the reasoning of <i>Konkur</i> does echo issues raised" in the instant case, <i>Konkur</i> involved a different and unrelated statute (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=15076671807644972925&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Espinal v Sephora USA, Inc.,</i> 2022 WL 16973328,</a> *9, 2022 US Dist LEXIS 208400, *22 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)], <i>report and recommendation adopted by</i> 2023 WL 2136392, 2023 US Dist LEXIS 28661 [SD NY, No. 22 Civ. 03034 (PAE) (GWG)]). "On its face, <i>Konkur</i>
does not stand for the propositions that the late payment of wages is
not the underpayment of wages, or that the late payment of wages is not a
wage claim privately actionable under Section 198(1-a). Thus, <i>Konkur</i> does not directly contradict the <i>Vega</i> Court's determination that the late payment of wages is an underpayment of wages" (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=14303127571979040044&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Mabe v Wal-Mart Assoc., Inc.,</i> 2022 WL 874311,</a> *6, 2022 US Dist LEXIS 53492, *17 [ND NY, No. 1:20-cv-00591]; <i>see </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=17337186774003190913&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Rosario v Icon Burger Acquisition LLC,</i> 2022 WL 17553319,</a> *5, 2022 US Dist LEXIS 222321, *11-12 [ED NY, No. 21-CV-4313 (JS) (ST)]).</p>
<p>Following the Court of Appeals' decision in <i>Konkur,</i> many
federal district courts have addressed the instant issue of whether
Labor Law § 198(1-a) provides a private right of action for a violation
of Labor Law § 191. These courts have considered <i>Vega</i> in light of <i>Konkur,</i> but have adopted <i>Vega</i>'s
determination that the late payment of wages constitutes an
underpayment of wages, and that Labor Law § 198(1-a) provides a private
right of action for violations of Labor Law § 191 (<i>see </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a> *2-6, 2022 US Dist LEXIS 234643, *5-14; <i>Confusione v Autozoners, LLC,</i> 2022 WL 17585879, *1, 2022 US Dist LEXIS 223438, *3-4 [ED NY, No. 21-CV-00001 (JMA) (AYS)]; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=17337186774003190913&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Rosario v Icon Burger Acquisition LLC,</i> 2022 WL 17553319,</a> *4-5, 2022 US Dist LEXIS 222321, *10-15; <i>Day v Tractor Supply Co.,</i> 2022 WL 19078129, *4-7, 2022 US Dist LEXIS 217201, *10-19 [WD NY, No. 22-CV-489-JLS-MJR], <i>report and recommendation adopted by</i> 2023 WL 2560907, 2023 US Dist LEXIS 45489 [WD NY, No. 22-CV-489 (JLS) (MJR)]; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=4659687821052578981&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Rath v Jo-Ann Stores, LLC,</i> 2022 WL 17324842,</a> *3-8, 2022 US Dist LEXIS 214798, *6-19 [WD NY, No. 21-CV-791S]; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=15076671807644972925&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Espinal v Sephora USA, Inc.,</i> 2022 WL 16973328,</a> *5-9, 2022 US Dist LEXIS 208400, *11-23; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=9853953777028433238&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Harris v Old Navy, LLC,</i> 2022 WL 16941712,</a> *5-10, 2022 US Dist LEXIS 206664, *14-27 [SD NY, No. 21 Civ. 9946 (GHW) (GWG)], <i>report and recommendation adopted by</i> 2023 WL 2139688, 2023 US Dist LEXIS [SD NY, No. 1:21-cv-9946-GHW]; <a href="https://scholar.google.com/scholar_case?case=17898059733080750735&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Levy v Endeavor Air Inc.,</i> 638 F Supp 3d 324, 331-332</a> [ED NY]; <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=14303127571979040044&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Mabe v Wal-Mart Assoc., Inc.,</i> 2022 WL 874311,</a> *8, 2022 US Dist LEXIS 53492, *20).</p>
<p>The majority also concludes that a private right of action under
Labor Law § 198(1-a) may not be implied because "multiple official
enforcement mechanisms for violations of Labor Law § 191 are [already]
provided" for. The majority further cites to <i>Konkur</i> to support this conclusion. However, I conclude, as Justice Rivera opined in her dissenting opinion in <i>Konkur</i>
regarding Labor Law § 198-b, that in the instant matter, the fact that
other enforcement mechanisms are available to the plaintiff for
violations of Labor Law § 191 "does not mean that the legislature
foreclosed a private right of action [for this section] or that
recognizing such a right would be at odds with the statutory scheme" (<a href="https://scholar.google.com/scholar_case?case=17502831177233619126&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Konkur v Utica Academy of Science Charter Sch.,</i> 38 NY3d at 52 [Rivera, J., dissenting]</a>).</p>
<p>In my view, just as the First Department concluded in <i>Vega,</i>
even if Labor Law § 198 does not expressly authorize a private right of
action for a violation of the requirements of Labor Law § 191, a remedy
may be implied, as the "plaintiff is one of the class for whose
particular benefit the statute was enacted, the recognition of a private
right of action would promote the legislative purpose of the statute
and the creation of such a right would be consistent with the
legislative scheme" (<a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1146</a>).
The plaintiff is a "manual worker," as defined by the statute, and
allowing him to bring suit would promote the legislative purpose of
section 191, which is to protect workers who are generally "dependent
upon their wages for sustenance" (<a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1146</a> [internal quotation marks omitted]; <i>see </i><a href="https://scholar.google.com/scholar_case?case=7784666517544035770&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>People v Vetri,</i> 309 NY 401, 405</a>), and section 198, "which was enacted to deter abuses and violations of the labor laws" (<a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1146</a>; <i>see </i><a href="https://scholar.google.com/scholar_case?case=3770776013978213681&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>P & L Group v Garfinkel,</i> 150 AD2d 663, 664</a>).
The creation of such a right would also be consistent with the
legislative scheme, as section 198 "explicitly provides that individuals
may bring suit against an employer for violations of the labor laws,
even if the Commissioner chooses not to do so" (<a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1147</a>; <i>see </i><a href="https://scholar.google.com/scholar_case?case=12160016657285145914&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>AHA Sales, Inc. v Creative Bath Prods., Inc.,</i> 58 AD3d 6, 15</a>).</p>
<p>Accordingly, I respectfully disagree with my colleagues in the
majority, and would determine that Labor Law § 198(1-a) provides a
private right of action for a violation of Labor Law § 191, and, in
addition, a private right of action may also be implied (<i>see </i><a href="https://scholar.google.com/scholar_case?case=4522559681467962211&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Vega v CM & Assoc. Constr. Mgt., LLC,</i> 175 AD3d at 1146-1147</a>).</p>
<p>Although the majority did not reach the issue of whether the
plaintiff can seek liquidated damages on behalf of the putative class
members, in my view, he cannot. Pursuant to CPLR 901(b), "[u]nless a
statute creating or imposing a penalty, or a minimum measure of recovery
specifically authorizes the recovery thereof in a class action, an
action to recover a penalty, or minimum measure of recovery created or
imposed by statute may not be maintained as a class action." Liquidated
damages have been viewed as a penalty (<i>see </i><a href="https://scholar.google.com/scholar_case?case=1499490446499843428&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Carter v Frito-Lay, Inc.,</i> 74 AD2d 550, 551,</a> <i>affd</i> <a href="https://scholar.google.com/scholar_case?case=2528271665439726989&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33">52 NY2d 994</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=15294185686664575752&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Griffin v Gregorys Coffee Mgt. LLC,</i> 2019 NY Slip Op 31125</a>[U]
[Sup Ct, NY County]), and Labor Law § 198(1-a) does not specifically
authorize that liquidated damages are recoverable in a class action.
Accordingly, I would conclude that while the plaintiff is entitled to
proceed on his claim for liquidated damages in his individual capacity,
pursuant to CPLR 901(b), he may not seek to recover liquidated damages
on behalf of the putative class members, although he may seek to recover
interest on behalf of the putative class members (<i>see id.</i>; <i>see generally </i><a href="https://scholar.google.com/scholar_case?case=14493426209723899565&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Borden v 400 E. 55th St. Assoc., L.P.,</i> 24 NY3d 382, 397</a>; <a href="https://scholar.google.com/scholar_case?case=15255602577962304309&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Brown v Mahdessian,</i> 206 AD3d 511, 511</a>).</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=15190619814081598490&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33#r[1]" name="[1]">[1]</a> We recognize that the federal case law cited in the preceding paragraph determined that <i>Konkur</i> did not abrogate <i>Vega</i>'s determination regarding an <i>express</i> private right of action (<i>see e.g. </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16151528588958616071&q=Grant+v.+Global+Aircraft+Dispatch+Inc.&hl=en&as_sdt=4,33"><i>Georgiou v Harmon Stores, Inc.,</i> 2023 WL 112805,</a> *4-6, 2022 US Dist LEXIS 234643, *10-14). We do not suggest otherwise, as <i>Konkur</i> concerned an implied private right of action under a different provision of the Labor Law. Rather, we conclude that <i>Konkur</i> raises doubt as to the reasoning underlying the First Department's decision in <i>Vega,</i> in the manner just described."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-37452043888863288252024-02-22T13:53:00.002-05:002024-02-22T13:53:32.553-05:00EMOTIONAL TOLL NOT DURESS TO SET ASIDE STIPULATION<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/868c/binding_contract_contract_secure.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="533" data-original-width="800" height="533" src="https://free-images.com/lg/868c/binding_contract_contract_secure.jpg" width="800" /></a></div><br />NJL v. CAL, 2024 NY Slip Op 50140 - Nassau Co. Sup. Court 2024:<p></p><p>"This case presents a sad and unfortunate set of facts. The important <i>fact</i>
central to this application is not in dispute. The parties' underlying
matrimonial action was commenced on December 7, 2020. After
two-and-a-half years of litigation, which included twelve (12) motions,
family offense petitions, the issuance of order(s) of protection, and
the start of a trial, these parties resolved their matrimonial action.
During the trial, the parties resolved the issues of custody and
parenting time by a Stipulation which was spread on the Record in open
Court on March 28, 2023 (hereinafter referred to as the "Custody
Stipulation"),<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[1]" name="r[1]">[1]</a></sup>
and the remaining issues were thereupon resolved by a Stipulation which
was also spread on the Record in open Court on March 29, 2023
(hereinafter referred to as the "Financial Stipulation").<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[2]" name="r[2]">[2]</a></sup></p>
<p>During the parties' trial, however, something unfortunate occurred.
These parties have three (3) children: C III, C A and CH A. The parties
daughter, CH A, threatened self-harm. She expressed her pain to her
parents, and told them that she did not wish to live because of the
fighting between her parents. The police arrived on-scene. An ambulance
was called. CH A spent the night at the hospital under evaluation. There
is, of course, a presumption that <i>natural bonds of affection</i> lead parents to act in the best interests of their children. <a href="https://scholar.google.com/scholar_case?case=10935528927815644277&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Troxel v. Granville,</i> 530 U.S. 57, 87 (2000) (Stevens, J., dissenting)</a>. The history and culture of Western civilization reflect a strong tradition of parental <i>concern</i> for the nurture and upbringing of their children. <a href="https://scholar.google.com/scholar_case?case=657754444048899722&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Tatel v. Mt. Lebanon Sch. Dist.,</i> 637 F. Supp. 3d 295 (D. Penn. 2022)</a>.
A parent's love for a child can be described as a cohesive bond which
serves to anchor the material, financial and emotional support that are
vital to the well-being of that child. <a href="https://scholar.google.com/scholar_case?case=11889442775781638750&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>M.H.B. v. H.T.B.,</i> 100 N.J. 567 (Supreme Court of New Jersey 1985)</a>. There can be no doubt that CH A's threat of self-harm took an emotional toll on these parties.</p>
<p>Now, months later, the Defendant seeks to set aside the Custody
Stipulation and the Financial Stipulation, based upon duress and, in
effect, unconscionability. The principal issue of this application is a
sensitive one, and it is whether or not a child's threat of self-harm
and her subsequent hospitalization for that threat constitutes duress
and is a sufficient basis to vitiate two (2) Stipulations (<i>see supra</i>)
on that basis. This Court finds, for the reasons that follow in this
Decision and Order, that the child's threat of self-harm and subsequent
hospitalization for same does not constitute duress.</p>
<p></p><h2>PRELIMINARY STATEMENT</h2><p></p>
<p>The Defendant moves by Order to Show Cause dated October 25, 2023
(Motion Sequence No.: 016), seeking an Order: (1) Vacating the terms and
provisions of the Stipulation of Settlement dictated in open court on
March 28, 2023 and the Stipulation of Settlement dictated in open court
on March 29, 2023 on the grounds that the terms and provisions of said
Stipulations were both the product of duress and are manifestly unfair;
(2) Staying the within proceedings including but not limited to the
entry of a proposed Judgment of Divorce pending determination of the
within motion; (3) Granting defendant, C.A.L., II, full residential
custody of the child, CH A, born XX XX, 2012; (4) Granting defendant
such other and further relief as to this Court may seem just, proper and
equitable.</p>
<p>The Plaintiff cross-moves by Notice of Cross-Motion dated January 10,
2024 (Motion Sequence No.: 108) seeking an Order: (1) Sanctioning
Defendant pursuant to Pursuant to [sic] 22 NYCRR 130-1.1 by granting
Krauss Shaknes Tallentire & Messeri LLP the reasonable costs and
attorney's fees incurred by Plaintiff in opposing Defendant's frivolous
Order to Show Cause; and (2) Directing such other and further relief as
the Court deem just and proper.</p>
<p>The Plaintiff moves by Order to Show Cause for Contempt dated
December 20, 2023 (Motion Sequence No.: 017) seeking an Order: (a)
Pursuant to Judiciary Law 750(A)(3) and 753(A)(3), adjudging Defendant,
C.A.L., II ("Defendant"), to be in criminal and civil contempt of court
for failure to pay the school tuition for the parties three Children in
violations [sic] of the so-Order Stipulations of Settlement dated March
28, 2023 ("March 28th Stipulation" Exhibit B) May 29, 2023 (March 29th
[sic] Stipulation Exhibit C); (b) Pursuant to Judiciary Law 750(A)(3)
and 753(A)(3), adjudging Defendant, C.A.L., II ("Defendant"), to be in
criminal and civil contempt of court for failure to pay child support
based on his refusal to reimburse the Plaintiff for his share of the
Children's add on expenses in violations [sic] of the March 28th
Stipulation and March 29th Stipulation; (c) Directing Defendant to
immediately pay of [sic] the sum of $13,691.44 to the Rectory School for
his share of CH A's tuition through the end of the 2023-2024 school
year, $8,874 to Hebron Academy for his share of C A's tuition through
the end of the 2023-2024 school year, and $9,422.67 to the Hyde School
for his share of C III's tuition through the end of the 2023-2024 school
year; (d) Directing Defendant to immediately reimburse Plaintiff the
amount of $4,140 for his share of the Children's tutoring expenses,
$4,325 for his share of the children's 2023 summer camp costs, $2,619.73
for his share of the Children's extracurricular activity expenses, and
$5,012.56 for his share of the Children's unreimbursed medical expenses;
(e) Pursuant to Domestic Relations Law 237(b) and 238 and/or Judiciary
Law 773 awarding Plaintiff the sum of $20,000 in counsel fees for the
costs and fees incurred as a result of having to bring this application
due to Defendant's failure to comply with this Court's orders; and (f)
For such other and further relief as the Court may deem necessary.</p>
<p></p><h2>BACKGROUND</h2><p></p>
<p>These parties were married on August 17, 2007. There are three (3)
children of this marriage: C III, born XX XX, 2008, C A, born XX XX,
2010 and CH A, born XX XX, 2012. The parties' matrimonial action was
commenced on December 7, 2020 by the filing of a Summons with Notice and
Verified Complaint with the Nassau County Clerk's Office. During the
underlying matrimonial action, the Plaintiff was represented by the firm
of Krauss Shaknes Tallentire & Messeri, LLP. The Defendant was
represented by The Maiaklovsky Law Firm, PLLC. By Order Appointing
Attorney for the Children dated January 21, 2021, this Court appointed
Brynde Berkowitz, Esq. (hereinafter referred to as the "AFC"), to
represent the subject children.</p>
<p>The parties' underlying matrimonial action proceeded to trial. The
parties settled this matter during trial, and spread on the record in
open Court the Custody Stipulation on March 28, 2023 and the Financial
Stipulation on March 29, 2023.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[3]" name="r[3]">[3]</a></sup>
On March 29, 2023, this Court issued an Order Directing Submission of
Findings of Fact, Conclusions of Law, and Judgment of Divorce
(hereinafter referred to as the "Judgment Submission Order"). The
contested-settled judgment packet was submitted to the Clerk's Office
through NYSCEF on June 29, 2023. To date, the proposed Judgment of
Divorce remains unsigned.</p>
<p>On September 11, 2023, the Defendant executed a Consent to Change
Attorney form, substituting Eugene W. Bechtle, Jr. Esq., in place and
stead of the Maiaklovsky Law Firm, PLLC. On the presentment date of the
Defendant's Order to Show Cause, this Court denied the proposed
preliminary relief sought by the Defendant which was for a stay of all
proceedings including a stay of entry of the proposed Judgment of
Divorce.</p>
<p>On the presentment date of the Plaintiff's Order to Show Cause for Contempt, the Court (Hon. Stacy D. Bennett, J.S.C.),<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[4]" name="r[4]">[4]</a></sup> granted the following interim relief:</p>
<blockquote>ORDERED, that, pending determination of this motion, within
48 hours, Defendant shall pay the sums of $9,800.00 to the Rectory
School for his share of CH A's tuition through the end of the 2023-2024
school year, $6,655.00 to Hebron Academy for his share of C A's tuition
through the end of the 2023-2024 school year, and $2,770.00 for the Hyde
School for his share of C III's tuition through the end of the
2023-2024 school year.</blockquote>
<p></p><h2>THE PARTIES' CONTENTIONS</h2><p></p>
<p></p><h2>Defendant's Contentions (Motion Sequence No.: 016):</h2><p></p>
<p>The Defendant argues that the impetus for his participation and
verbal consent to the Stipulation(s) was extreme duress and that the
terms of both of the aforesaid are manifestly unfair. He argues that the
Plaintiff has accused him of abusing the children and that his
interaction with the children was interfered with by the Plaintiff. He
argues that the Plaintiff has made five (5) complaints to CPS, all of
which were determined to be unfounded.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[5]" name="r[5]">[5]</a></sup>
He argues that during the matrimonial action, there was extreme anxiety
imposed upon the children, and that the Plaintiff employed one of the
parties' sons to falsely accuse him of abuse. He argues that CH A is
"daddy's little girl" who suffered the most during the divorce as she is
the most "vulnerable". He argues that his counsel during the divorce
case was too "passive" in representing his interests, but he concedes
that he was "becoming desperate to resolve this case". He argues that in
March, 2023, CH A's health was seriously declining and that she would
cry to him to bring an end to the divorce case. He sets forth that on
March 27, 2023, CH A threatened suicide and that because of this, in
effect, he had to get the case "over", as he needed to bring peace and
stability to CH A's life. He therefore argues that, in light of this and
in effect, he "went along with whatever was dictated on the Record the
next day and the day after" and that he was only "half listening". He
argues that, on October 9, 2023, CH A called him from her boarding
school and told him that she was so upset that she was going to commit
suicide and that she had cut herself. He argues that he should have
never consented to give-up custody of CH A. He sets forth that his gross
salary is $128,892.64, but his monthly expenses are $27,908, including
sharing the cost of boarding school for all three children, his share of
which totals $31,266.00. He argues that he also has to share the cost
of summer camp, with his share totaling $4,325.00.</p>
<p></p><h2>Plaintiff's Contentions (Motion Sequence No: 017):</h2><p></p>
<p>The Plaintiff argues that when she commenced the underlying
matrimonial action, the Defendant consistently failed to pay child
support and he refused to pay the children's add-on expenses. She argues
that the children have been attending private independent schools since
before the divorce action and, in effect, the Defendant changed his
position about private school when the divorce action was commenced. She
argues that the Defendant has failed to pay his portion of the
children's tuition and failed to reimburse her for over $20,000 in
add-on expenses. She argues that she sought the Defendant's payment of
the children's tuition, but the children's schools are threatening to
expel them for the Spring 2024 semester. She argues that the Defendant
is in arrears $31,988.11 for school tuition, $495 for school application
fees, $4,140 for tutoring expenses, $4,325 for summer camp expenses,
$2,619.73 for extracurricular activity expenses, and $5,012.56 for
medical co-payment expenses.</p>
<p></p><h2>Affirmation of Attorney for the Children (Motion Sequence Nos.: 016 & 017):</h2><p></p>
<p>The AFC sets forth that she contacted two of the children's schools
in December, 2023, and confirmed that the Defendant had not paid his
share of tuition. The AFC sets forth that she met with the children on
December 27, 2023, and the children advised her that each of them are
"thriving" at their current boarding schools and that they each would
like to remain there. The AFC sets forth that each school, however,
advised her that the children would not be allowed back after the
Christmas holiday unless each school received the tuition due. The AFC
reiterates that the children each wish to continue attending their
respective schools and that it is in the best interests of the children
that the Defendant pay his share of the tuition that is due. The AFC
sets forth that the parties were engaged in an acrimonious litigation
during the underlying divorce and waged war against each other and
sought police intervention in front of the children. The AFC sets forth
that the underlying divorce was resolved in the best interests of the
children. The AFC sets forth that the Plaintiff filed a Family Offense
Petition was settled on consent with no admission and a final Order of
Protection.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[6]" name="r[6]">[6]</a></sup> The AFC sets forth that C III wants everything to remain as <i>status quo</i>
and that he does not wish to have contact with the Defendant, that C A
would like to speak with the Defendant on the phone, and that CH A
wishes to maintain the <i>status quo.</i> She sets forth that CH A,
while she was previously unhappy at her Boarding School (which included
an incident of self-harm), she has adjusted and is happy now and that
when CH A is home from Boarding School, she wishes to continue to live
with the Plaintiff and visit with the Defendant, as she enjoys the
current schedule. The AFC sets forth that CH A has, in the past,
witnessed the Defendant engage in "extreme" corporal punishment" by the
Defendant upon her brothers.</p>
<p></p><h2>Plaintiff's Contentions & Opposition (Motion Sequence Nos.: 016 & 018):</h2><p></p>
<p>The Plaintiff reiterates that the Defendant is in arrears with
respect to many of his court-ordered obligations. She argues that she
accepted less than the statutorily amount for child support and less
than her equitable share of the Defendant's pension at Vanguard. She
argues that the Defendant agreed to equally cover the costs of private
schooling and the Defendant knew that the only educational options were
private boarding schools. She argues that the Defendant continues to
allocate funds for litigation instead of complying with the
Stipulation(s). She argues that there has been no change in
circumstances as it relates to CH A and that it is in the best interests
of CH A to remain in her care. She argues that the Defendant has a
short temper and that this resulted in the two boys refusing visitation
with him. She argues that the Defendant physically assaulted C A. She
argues that C A recorded the Defendant threatening and abusing C A and
making comments about his sexuality, and that CH A was present during
this "episode".</p>
<p></p><h2>Defendant's Opposition, Opposition & Reply (Motion Sequence Nos.: 016, 017 & 018):</h2><p></p>
<p>The Defendant argues that the TRO's issued by Justice Bennett have
been satisfied as he put together the $19,280.33 ordered by borrowing
the maximum from his 401(k), borrowing from a friend, and his year-end
bonus. He argues that three lawyers (the Plaintiff, the Plaintiff's
counsel and the AFC) out-maneuvered and "bulldozed" his lawyer who was
"not capable of standing up for me". He argues that the Stipulation(s)
are one-sided. He argues that he is unable to comply with the
Stipulation(s), as he has $27,908.00 in monthly expenses which leaves
him with a monthly deficit of $6,973.07. He avers that his monthly
income, after deductions, is $3,152.76. He argues that he cannot pay his
prior attorney and cannot pay his student loans. He argues that over
his objection, the Plaintiff placed the children in out-of-state
boarding schools, and he never consented to those placements. He argues
that he cannot be held in contempt for decisions made over his
objections and that the Plaintiff denigrates his role as the father of
the children. He argues that the AFC's contentions that the children are
enjoying their current schools is "besides the point" as the children
were manipulated during the divorce. He argues that the Stipulation(s)
are deficient in that it is unusual for the children to be shipped-off
to Boarding School and sleep-away camps, and that provisions for the
payment of private school prior to college are unusual. He argues that
"caps" should have been placed in the Stipulation(s).</p>
<p></p><h2>DISCUSSION + ANALYSIS</h2><p></p>
<p></p><h2>VACATUR OF CUSTODY & FINANCIAL STIPULATION</h2><p></p>
<p>Stipulations of settlement are favored by the courts and are not lightly set aside. <a href="https://scholar.google.com/scholar_case?case=11537021316386420234&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Sabowitz v. Sabowitz,</i> 123 AD3d 794 (2d Dept. 2014)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=14873158889095840016&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Campione v. Alberti,</i> 98 AD3d 706 (2d Dept. 2012)</a>.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[7]" name="r[7]">[7]</a></sup> Judicial review is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own. <a href="https://scholar.google.com/scholar_case?case=958027384336823256&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Doukas v. Doukas,</i> 47 AD3d 753 (2d Dept. 2008)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=9181045289927981679&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Brennan-Duffy v. Duffy,</i> 22 AD3d 699 (2d Dept. 2005)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=15344396231435212437&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Kojovic v. Goldman,</i> 35 AD3d 65 (1st Dept. 2006)</a>
(a stipulation of settlement in a divorce action, competently entered
into, is entitled to the recognition accorded any other contract, and
judicial review is to be exercised circumspectly, sparingly and with a
persisting view to the encouragement of parties settling their own
differences in connection with the negotiation of property settlement
provisions). Courts have thrown their cloak of protection over
separation agreements and made it their business, when confronted, to
see to it that they are arrived at fairly and equitably, in a manner so
as to be free from the taint of fraud and duress, and to set aside or
refuse to enforce those born of and subsisting in inequity. <a href="https://scholar.google.com/scholar_case?case=16653984105220302091&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Jon v. Jon,</i> 123 AD3d 979 (2d Dept. 2014)</a>.</p>
<p>A separation agreement or stipulation of settlement which is fair on
its face will be enforced according to its terms unless there is proof
of fraud, duress, overreaching, or unconscionability. However, because
of the fiduciary relationship existing between spouses, a marital
agreement should be closely scrutinized and may be set aside upon a
showing that it is unconscionable or the result of fraud or where it is
shown to be manifestly unjust because of the other spouse's
overreaching. <a href="https://scholar.google.com/scholar_case?case=15761699095546283421&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Eichholz v. Panzer-Eichholz,</i> 188 AD3d 820 (2d Dept. 2020)</a>.
When there has been full disclosure between the parties, not only of
all relevant facts but also of their contextual significance, and there
has been an absence of inequitable conduct or other infirmity which
might vitiate the execution of the agreement, courts should not intrude
so as to redesign the bargain arrived at by the parties on the ground
that judicial wisdom in retrospect would view one or more of the
specific provisions as improvident or one-sided. <a href="https://scholar.google.com/scholar_case?case=17201789805620509901&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Mizrahi v. Mizrahi,</i> 171 AD3d 1161 (2d Dept. 2019)</a>. Indeed, there is a long-standing public policy in favor of settlements in divorce action. <a href="https://scholar.google.com/scholar_case?case=2238923388292349444&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Keller-Goldman v. Goldman,</i> 149 AD3d 422 (1st Dept. 2017) (Andrias, J., dissenting)</a>.</p>
<p></p><h2><i>Duress</i></h2><p></p>
<p>A contract is voidable on the ground of duress when it is established
that the party making the claim was forced to agree to it by means of a
wrongful threat precluding the exercise of his or her free will. <a href="https://scholar.google.com/scholar_case?case=16326841655460399121&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Heinemann v. Heinemann,</i> 189 AD3d 1553 (2d Dept. 2020)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=10653378253461919862&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Shah v. Mitra,</i> 171 AD3d 971 (2d Dept. 2019)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=18203703642273012817&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Forman v. Forman,</i> 211 AD3d 698 (2d Dept. 2022)</a>.
Generally, the aggrieved party must demonstrate that threats of an
unlawful act compelled his or her performance of an act which he or she
had the legal right to abstain from performing. <a href="https://scholar.google.com/scholar_case?case=17079655660806398660&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Polito v. Polito,</i> 121 AD2d 614 (2d Dept. 1986)</a>. The threat must be such as to deprive the party of the exercise of free will. <a href="https://scholar.google.com/scholar_case?case=9411940485766773716&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Cavalli v. Cavalli,</i> 226 AD2d 666 (2d Dept. 1996)</a>. In order to form an element of duress, the threat must be wrongful. <a href="https://scholar.google.com/scholar_case?case=7982163609753031519&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Podmore v. Our Lady of Victory Infant Home,</i> 82 AD2d 48 (4th Dept. 1981)</a>. A crucial element of duress is lack of free choice. <a href="https://scholar.google.com/scholar_case?case=7982163609753031519&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Podmore,</i> 82 AD2d at 51</a>. A threat to do that which one has the legal right to do does not constitute duress (<i>see </i><a href="https://scholar.google.com/scholar_case?case=12809057791176052113&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Bachorik v. Allied Control Co.,</i> 34 AD2d 940 (1st Dept. 1970)</a>), and generalized contentions that a party felt pressured are insufficient (<i>see </i><a href="https://scholar.google.com/scholar_case?case=11820152594460788167&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Desantis v. Ariens Co.,</i> 17 AD3d 311 (2d Dept. 2005)</a>).</p>
<p>As a guidepost, and aside from established case-law, the Court looks
to secondary authority, such as the Restatement of Contracts. The
Restatement (Second) of Contracts § 175, entitled <i>When Duress by Threat Makes a Contract Voidable,</i> provides:</p>
<blockquote>(1) If a party's manifestation of assent is induced by an improper threat <i>by the other party</i> that leaves the victim no reasonable alternative, the contract is voidable by the victim.</blockquote>
<blockquote>(2) If a party's manifestation of assent is induced by one
who is not a party to the transaction, the contract is voidable by the
victim unless the other party to the transaction in good faith and
without reason to know of the duress either gives value or relies
materially on the transaction.</blockquote>
<p>(emphasis added).</p>
<p>But what constitutes an improper threat? The Restatement (Second) of Contracts § 176, entitled <i>When a Threat Is Improper,</i> provides:</p>
<blockquote>(1) A threat is improper if</blockquote>
<blockquote>(a) what is threatened is a crime or a tort, or the threat
itself would be a crime or a tort if it resulted in obtaining property,</blockquote>
<blockquote>(b) what is threatened is a criminal prosecution,</blockquote>
<blockquote>(c) what is threatened is the use of civil process and the threat is made in bad faith, or</blockquote>
<blockquote>(d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient.</blockquote>
<blockquote>(2) A threat is improper if the resulting exchange is not on fair terms, and</blockquote>
<blockquote>(a) the threatened act would harm the recipient and would not significantly benefit the party making the threat,</blockquote>
<blockquote>(b) the effectiveness of the threat in inducing the
manifestation of assent is significantly increased by prior unfair
dealing by the party making the threat, or</blockquote>
<blockquote>(c) what is threatened is otherwise a use of power for illegitimate ends.</blockquote>
<p>The genesis of the Defendant of duress is that, in effect, he was
forced to agree to the terms of the Stipulation(s) because CH A
threatened self-harm. The Defendant's application founders. CH A's
threat of self-harm is not an <i>improper threat</i> made by the <i>other party</i> (<i>see</i> Restatement (Second) of Contracts § 175(1)). CH A, the parties' child, is <i>not</i> the <i>other party.</i>
In this vein, the Defendant has not established that his manifestation
of assent to enter into the Stipulation(s) was induced by a wrongful
threat made <i>by the Plaintiff.</i> In fact, the Defendant has not even alleged that the <i>Plaintiff</i> threatened him in a wrongful way so as to induce his assent to the Stipulation(s) (<i>see</i>
Restatement (Second) of Contracts § 175(1)). To this point, the
Defendant has not alleged that the Plaintiff threatened a crime or a
tort, nor has he alleged that the Plaintiff threatened the Defendant's
criminal prosecution if he did not consent to the Stipulation(s) (<i>see</i>
Restatement (Second) of Contracts § 176(1)(b)). Additionally, the
Defendant has not alleged that what was threatened and what forced him
to enter into the Stipulation(s) was the use of civil process in bad
faith (<i>see</i> Restatement (Second) of Contracts § 176(1)(c)), or that the Plaintiff breached the duty of good faith and fair dealing (<i>see</i>
Restatement (Second) of Contracts § 176(1)(d)). The Court does not find
that the Defendant's manifestation of assent to enter into the
Stipulation(s) was induced by one who is not a party to the transaction,
namely, CH A (<i>see</i> Restatement (Second) of Contracts § 175(2)) as the Defendant himself acknowledged on the Record, under oath, that <i>he</i> was entering into the Stipulation(s) <i>freely and voluntarily.</i><sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[8]" name="r[8]">[8]</a></sup></p>
<p>There is nothing in this Record that alleges and/or demonstrates that the <i>Plaintiff engaged</i> in an <i>unlawful act</i>
which compelled the Defendant's performance of an act that he had a
legal right to abstain from. Namely, the allegations of duress
propounded by the Defendant centers around CH A's mental state during
the parties' matrimonial action. But what the Defendant fails to do is
provide this Court with a sufficient nexus as to <i>how</i> CH A's
mental state effectively forced him and left him with no other choice
but to enter into the Stipulation(s). CH A's mental state did not
deprive the Defendant of his free will not to agree to the terms of the
Stipulation(s).</p>
<p>Additionally, the Court does not find that the Defendant was not without a reasonable alternative (<i>see</i> Restatement (Second) of Contracts § 175(1)), as the Defendant could have elected to <i>continue</i>
with the ongoing trial of the matrimonial matter, which the Court does
not find to be an unreasonable alternative. Moreover, the Court finds
that the Defendant had another alternative: seek or request an
adjournment of the underlying matrimonial trial in light of the child's
threat of self-harm. The Defendant, in fact, concedes that "...I never
should have consented to give up custody of CH A..." (<i>see</i> C.A.L., II, Affidavit ¶ 12), which the Court finds to be an acknowledgment that the Defendant <i>had a reasonable alternative</i>: to continue with the trial and pursue custody of CH A.</p>
<p>The Court has another consideration: the Stipulation(s) speak for
themselves. The relevant portions of the Custody Stipulation read:</p>
<blockquote>THE COURT: Okay, thank you.</blockquote>
<blockquote>Ms. L's and Mr. L's, did you hear the stipulation read into the record?</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>THE COURT: Did you both understand it?</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>THE COURT: Do you both agree to be bound by the Stipulation that was read into the record?</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>THE COURT: Are you <i>both entering into this agreement freely and voluntarily?</i></blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>* * *</blockquote>
<blockquote>THE COURT: Do you <i>understand that if you did not come
into this agreement on custody and parenting time you had the right to
continue the trial with regard to those matters?</i></blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: <i>Yes.</i></blockquote>
<p>(<i>see</i> Custody Stipulation, pages 10-11) (emphasis added).</p>
<p>The relevant portions of the Financial Stipulation provide:</p>
<blockquote>THE COURT: So Ms. L, Mr. L, the same questions as yesterday. Did you both hear the stipulation read into the record?</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>THE COURT: Did you both understand it?</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>THE COURT: Do you both agree to it?</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>THE COURT: Are you both entering into this agreement <i>freely and voluntarily?</i></blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: <i>Yes.</i></blockquote>
<blockquote>* * *</blockquote>
<blockquote>THE COURT: Do you understand that you had <i>the right to proceed to trial</i>—</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: Yes.</blockquote>
<blockquote>THE COURT: —over these issues?</blockquote>
<blockquote>MS. L: Yes, your Honor.</blockquote>
<blockquote>MR. L: <i>Yes.</i></blockquote>
<p>Here, both Stipulation(s) contain <i>express</i> acknowledgments — by the Defendant himself — that they were entered into <i>freely and voluntarily. See generally </i><a href="https://scholar.google.com/scholar_case?case=11537021316386420234&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Sabowitz v. Sabowitz,</i> 123 AD3d 794 (2d Dept. 2014)</a>
(party not entitled to set aside stipulation where, among other things,
stipulation contained an express representation that it was not a
product of fraud or duress); <i>see also </i><a href="https://scholar.google.com/scholar_case?case=16806198285665718008&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Schultz v. Schultz,</i> 58 AD3d 616 (2d Dept. 2009)</a>
(application for summary judgment seeking declaration that postnuptial
agreement is unenforceable denied where, among other things, agreement
itself recites that the party entered into it freely and voluntarily).
In the instant action, those express acknowledgments — in <i>two separate stipulations</i>
— deflate the Defendant's claim that the Stipulation(s) were the
product of duress and that he had no choice but to enter into those
agreements.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[9]" name="r[9]">[9]</a></sup></p>
<p>Accordingly, and for all of the aforesaid reasons, it is hereby:</p>
<p>ORDERED, that so much of Branch (1) of the Defendant's Order to Show
Cause dated October 25, 2023 which seeks to set aside the Custody
Stipulation and the Financial Stipulation on the ground of duress be and
the same is hereby DENIED.</p>
<p></p><h2><i>Manifestly Unfair/Unconscionability</i></h2><p></p>
<p>The Defendant avers that both Stipulation(s) are "manifestly unfair",
which the Court understands to be arguments asserting
unconscionability. A party seeking to vacate a stipulation of settlement
has the burden of proof. <i>See generally </i><a href="https://scholar.google.com/scholar_case?case=10968271129796444847&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Johnson v. Ranger,</i> 216 AD3d 925 (2d Dept. 2023)</a>.
A stipulation which is fair on its face will be enforced according to
its terms unless there is proof of fraud, duress, overreaching, or
unconscionability. <a href="https://scholar.google.com/scholar_case?case=6738929103754388221&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Rubin v. Rubin,</i> 33 AD3d. 983 (2d Dept. 2006)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=3860770881026299106&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Lazar v. Lazar,</i> 88 AD3d 852 (2d Dept. 2011)</a>.
A stipulation, however, will not be vacated simply because a party,
after the fact, believes that the agreement was improvident in some
respect or that it constituted a bad bargain (<i>see </i><a href="https://scholar.google.com/scholar_case?case=10651022693005290500&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Cohen v. Cohen,</i> 170 AD3d 948 (2d Dept. 2023)</a>), and a stipulation of settlement is not unconscionable simply because it might have been improvident or one-sided (<i>see </i><a href="https://scholar.google.com/scholar_case?case=10480297445806584302&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>O'Hanlon v. O'Hanlon,</i> 114 AD3d 915 (2d Dept. 2014)</a>). The determination of unconscionability is a matter of law for the court to decide. <i>See generally </i><a href="https://scholar.google.com/scholar_case?case=1387659108574732203&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Industralease Automated & Scientific Equipment Corp. v. R.M.E. Enterprises, Inc.,</i> 58 AD2d 482 (2d Dept. 1977)</a>.
In determining the conscionability of a contract, no set weight is to
be given any one factor; each case must be decided on its own facts. <i>David v. #1 Mktg. Serv., Inc.,</i> 113 AD3d 810 (2d Dept. 2014).</p>
<p>As the Court of Appeals has written:</p>
<blockquote>It is well settled that an unconscionable contract is
generally defined as one which is so grossly unreasonable as to be
[unenforceable according to its literal terms] because of an absence of
meaningful choice on the part of one of the parties [procedural
unconscionability] together with contract terms which are unreasonably
favorable to the other party [substantive unconscionability].</blockquote>
<p><a href="https://scholar.google.com/scholar_case?case=16243980686750036663&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Lawrence v. Miller,</i> 11 NY3d 588 (2008)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=9200075438561309684&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Cilento v. Cilento,</i>
186 AD3d 556 (2d Dept. 2020 (in order to find a marital contract
unconscionable, two elements must be shown: procedural
unconscionability, which requires a lack of meaningful choice on the
part of one of the parties, and substantive unconscionability, which
requires contract terms which are unreasonably favorable to the other
party)</a>. An unconscionable bargain is one which no person in his or
her senses and not under delusion would make on the one hand, and no
honest and fair person would accept on the other, the inequality being
so strong and manifest as to shock the conscience and confound the
judgment of any person of common sense. <a href="https://scholar.google.com/scholar_case?case=424123712711397290&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Hughes v. Hughes,</i> 131 AD3d 1207 (2d Dept. 2015)</a>. Procedural and substantive unconscionability operate on a sliding scale. <a href="https://scholar.google.com/scholar_case?case=2176809352516605358&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Simar Holding Corp. v. GSC,</i> 87 AD3d 688 (2d Dept. 2011)</a>.</p>
<p>In defining, in part, what makes a contract unconscionable, the Court of Appeals has opined:</p>
<blockquote>[A]n unconscionable bargain has been regarded as one such as
no person in his or her senses and not under delusion would make on the
one hand, and as no honest and fair person would accept on the other,
the inequality being so strong and manifest as to shock the conscience
and confound the judgment of any person of common sense.</blockquote>
<p><a href="https://scholar.google.com/scholar_case?case=345843148963633295&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Christian v. Christian,</i> 42 NY2d 63 (1977)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=10653378253461919862&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Shah v. Mitra,</i> 171 AD3d 971 (2d Dept. 2019)</a>.
A reviewing court examining a challenge to an agreement will view the
agreement in its entirety and under the totality of the circumstances. <a href="https://scholar.google.com/scholar_case?case=17201789805620509901&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Mizrahi v. Mizrahi,</i> 171 AD3d 1161 (2d Dept. 2019)</a>.</p>
<p></p><h2>A. The Financial Stipulation</h2><p></p>
<p></p><h2>i. Procedural Unconscionability</h2><p></p>
<p>The procedural element of unconscionability requires an examination of the contract formation process. <a href="https://scholar.google.com/scholar_case?case=16080965880172217287&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Gillman v. Chase Manhattan Bank,</i> 73 NY2d 1 (1988)</a>. Evidence of procedural unconscionability may include high-pressure tactics or a lack of meaningful choice. <a href="https://scholar.google.com/scholar_case?case=5049067054824494045&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Green v. 119 W. 138th St. LLC,</i> 142 AD3d 805 (1st Dept. 2016) (Tom, J., dissenting)</a>.
Such evidence may also include whether deceptive tactics were used and
whether or not there was a disparity in bargaining power. <a href="https://scholar.google.com/scholar_case?case=16080965880172217287&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Gillman,</i> 73 NY2d at 10</a>. Additionally, the Court can consider an imbalance in the understanding and acumen of the parties. <a href="https://scholar.google.com/scholar_case?case=867141925571637805&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Emigrant Mtge. Co., Inc., v. Fitzpatrick,</i> 95 AD3d 1169 (2d Dept. 2012)</a>.</p>
<p>While the Defendant claims that "... I found myself struggling to
survive in a process where 3 attorneys (my wife, my wife's attorney, and
the attorney for the children) essentially outmaneuvered and bulldozed
my attorney who was clearly not capable for standing up for me..." (<i>see</i>
C.A.L., II, Reply Affidavit ¶ 4), the Defendant fails to provide this
Court, other than that generalized and conclusory claim, any specifics
are to what "high pressure" tactics were employed.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[10]" name="r[10]">[10]</a></sup>
In fact, his principal moving Affidavit effectively contradicts that
nonspecific claim, wherein he admits that "... [t]he possibility that CH
A, at her age, would be in so much pain that she would contemplate
taking her own life was overwhelming to me and I felt that as a parent I
had absolutely no choice but to do whatever I could to bring
contentious litigation to an end and try to bring some peace and
stability to my younger daughter..." (<i>see</i> C.A.L., II, Affidavit ¶
9). In other words, the Defendant allegedly agreed to resolve the case
because of what was transpiring with CH A, not because of any specific
high pressure tactics employed by the Plaintiff. Moreover, the Court
does not find the absence of any meaningful choice; the Defendant could
have proceeded with the ongoing trial, sought an adjournment of the
trial in light of CH A's threat of self-harm, or attempted to negotiate
different terms of the Financial Stipulation.</p>
<p>The Defendant likewise does not allege that the Plaintiff engaged in
any deceptive tactics in order to induce him into agreeing to the terms
of the Financial Stipulation. The Court, on this Record, does not find a
disparity in the bargaining-power of the parties; the Court notes that
both parties were represented by counsel, and if the Defendant felt as
if his attorney was not effectively advocating for him or being
bulldozed, he could have done exactly what he did right before he filed
this motion: executed a consent to change attorney form and retained a
different attorney. There is likewise insufficient evidence that there
was an imbalance in the understanding and acumen of the parties, as <i>both</i> parties acknowledged, on the Record, that they understood the terms of the Financial Stipulation.</p>
<p></p><h2>ii. Substantive Unconscionability</h2><p></p>
<p>The substantive element of unconscionability requires, in sum and
substance, a showing that one or more of the key terms of the contract
that are unreasonably favorable to the other party. <i>See generally Long Is. Minimally Invasive Surgery, P.C. v. Outsource Mktg. Solutions, Inc.,</i>
33 Misc 3d 1228(A) (Supreme Court Nassau County 2011). Substantive
elements of unconscionability appear in the content of the contract <i>per se. See generally Wells Fargo Bank, N.A. v. Weekes,</i> 46 Misc 3d 1205(A) (Supreme Court Kings County 2014).</p>
<p>The Court has examined whether or not the terms of the Financial
Stipulation are unreasonably favorable to the Plaintiff by reading the
Financial Stipulation <i>in toto.</i> The Court does not find that they are. <i>First,</i> the Court notes that the presumptive amount of child support for the three (3) children is $2,132.95 per month (<i>see</i> Financial Stipulation, page 10), and the Plaintiff agreed to accept a <i>downward deviation</i> of the presumptive amount of child support in the amount of $1,700.00 per month (<i>see</i>
Financial Stipulation, pages 3-4), a more than $400.00 per month
reduction in said obligation. That inures to the benefit of the <i>Defendant. Second,</i>
the Court notes that the Financial Stipulation acknowledges that the
Plaintiff's adjusted gross income for CSSA purposes is $97,819.48 and
the Defendant's adjusted gross income for CSSA purposes is $115,514.48,
making the combined parental income to be $213,333.76 (<i>see</i> Financial Stipulation, pages 9-10), with the Plaintiff's <i>pro rata</i> share of the CPI being 46% and the Defendant's <i>pro rata</i> share of the CPI being 54% (<i>see</i> Financial Stipulation, page 10). The Court notes that the parties agreed that <i>instead</i> of allocating the add-one expenses of the children on a <i>pro rata</i> basis, the parties agreed to <i>equally</i>
share the cost of agreed-upon extracurricular activities, unreimbursed
medical, dental, orthodontia and optical expenses, and the educational
expenses, such as private school tuition, applications and tutoring,
notwithstanding that the Defendant has a greater share of the combined
parental income. That insures to the benefit of the <i>Defendant.</i></p>
<p><i>Third,</i> the Court notes that the Plaintiff waived her right to
reimbursement of add-on expenses of the children paid by her retroactive
to the date of commencement of the action, except for the costs of C
III's braces and the children's therapy expenses (<i>see</i> Financial Stipulation, page 5). That is a benefit to the <i>Defendant. Fourth,</i> the Court notes that the parties combined parental income is $213,333.76 (<i>see supra</i>), and the downward deviation agreed-to was calculated only on the first $163,000.00 of combined parental income (<i>see</i>
Financial Stipulation, page 9) and not the total combined parental
income in excess of the statutory cap, which would have made the
Defendant's basic child support obligation higher. That inures to the
benefit of the <i>Defendant.</i></p>
<p><i>Fifth,</i> the Court notes that the Financial Stipulation
provides, in sum and substance, that the Plaintiff would retain the
property located at XXXXX, Hempstead, New York and the Defendant would
retain the property located at YYYYY, Hempstead, New York (<i>see</i>
Financial Stipulation, page 11). In effect, the Court finds that the
parties agreed that each of them would retain one parcel of property.
The Court does not find this agreed-upon equitable distribution of real
property to be manifestly unfair or so as to shock the conscience of the
Court. Both parties, in effect, received an equal benefit of the
retention of one parcel of real estate. <i>Sixth,</i> the Court notes
that the parties agreed that the Plaintiff would only receive forty
(40%) percent (and not fifty (50%) percent or some other percentage over
forty (40%) percent) of the Defendant's 401(k) at Vanguard. That inures
to the benefit of the <i>Defendant.</i></p>
<p><i>Seventh,</i> the Court finds that the agreed-upon life insurance policy of $225,000 to secure his child support obligation (<i>see</i>
Financial Stipulation, page 14) to be in-line with the remaining amount
of his child support obligation until the emancipation of the youngest
child.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[11]" name="r[11]">[11]</a></sup> In fact, the $225,000.00 face amount of his life insurance policy sufficiently covers <i>only</i>
his basic child support obligation extrapolated over the remaining
years until the youngest child emancipates, and provides, in effect, no
financial security for the Defendant's fifty (50%) percent share of his
obligation to the add-on expenses of the children. That inures to the
benefit of the <i>Defendant</i> inasmuch as a policy with a higher face value may have increased the cost of the policy premium. <i>Eighth,</i> it appears that the parties agreed to each be responsible for 100% of the debt in his or her respective names (<i>see</i>
Financial Stipulation, page 15). Inasmuch as no detail was set forth in
the Financial Stipulation as to the amount of the debt each party was
retaining, the Court sees nothing improvident or manifestly unfair about
the allocation of the debt.</p>
<p><i>Ninth,</i> it also appears that the parties agreed to remove their personal property from the other's residence (<i>see</i>
Financial Stipulation, page 15). Inasmuch as the parties did not
specifically allocate the actual personalty that each was retaining, or
the value thereof, the Court sees nothing manifestly unfair about that
agreement. <i>Tenth,</i> each party agreed to pay his or her own counsel fees (<i>see</i>
Financial Stipulation, page 16). The Court finds nothing manifestly
unfair about each party paying his or her own counsel fees in light of
the substantial comparability of the parties' respective incomes (<i>see supra</i>).</p>
<p>As a final point, the Defendant acknowledges that "... [m]y financial
circumstances are essentially what they were in March 2023..." (<i>see</i>
C.A.L., II, Affidavit ¶ 13). The Court has not found that any of the
provisions of the Financial Stipulation to be so one-sided or manifestly
unfair. The fact that there may not be any "caps" in the Financial
Stipulation with respect to certain add-on expenses, as argued by the
Defendant, is unpersuasive. Parties to a contract are basically free to
make whatever agreement they wish. <i>See generally Deutsche Bank Natl. Trust Co. V. Flagstar Capital Mkts.,</i>
32 NY3d 139 (2018). The Defendant has not provided this Court with any
statutory authority, established case-law, and/or any persuasive
authority that mandates a "cap" on educational expenses. The failure to
place a "cap" in the Financial Stipulation is not a violative of any
law, nor is it a transgression of public policy. Likewise, the fact that
the parties agreed to pay for private school (not college) is not a
basis to vitiate the Stipulation, especially since the Defendant does
not deny that the children were historically, even before the divorce,
attending private school. The Defendant's argument that the children
should be in public school instead of private school is not a basis to
vitiate the Financial Stipulation. In this respect, if the Defendant is
alleging that the Plaintiff violated the Custody Stipulation, then he
has remedies; but vitiation of the Financial Stipulation is not one of
them.</p>
<p></p><h2>B. The Custody Stipulation</h2><p></p>
<p></p><h2>i. Procedural Unconscionability</h2><p></p>
<p>The Court does not find any evidence of high-pressure tactics
employed by either the AFC or the Plaintiff. Both parties were
represented by independent counsel of their own choosing, and the
Defendant acknowledged, on the Record, that he was agreeing to the terms
of the Custody Stipulation "freely and voluntarily". Likewise, the
Court does not find that the Defendant had a lack of meaningful choice
before agreeing to the terms of the Custody Stipulation inasmuch as he
could have proceeded with the ongoing trial or sought an adjournment of
same in light of CH A's threat of self-harm. Or, alternatively, the
Defendant could have sought an adjournment of the trial.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[12]" name="r[12]">[12]</a></sup>
In other words, the Defendant was not forced by the Plaintiff to agree
to the terms of the Custody Stipulation, and he had other options; he
voluntarily chose not to exercise those other options. Furthermore,
there was no "disparity" in the bargaining power of the parties inasmuch
as both parties were represented by independent counsel of their own
choosing, and the Defendant himself acknowledged that he was satisfied
with the services of his counsel. Lastly, the Court does not find any
imbalance in the understanding and acumen of the parties, as the
Defendant expressly acknowledged, on the Record, that they understood
the terms of the Custody Stipulation.</p>
<p></p><h2>ii. Substantive Unconscionability<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#[13]" name="r[13]">[13]</a></sup></h2><p></p>
<p><i>First,</i> while the Custody Stipulation confers residential
custody of the children to the Plaintiff, it confers joint legal custody
upon the parties (<i>see</i> Custody Stipulation, page 3). The Court
does not find that one parent being designated as the residential parent
of the children to be a term that is manifestly unfair to one party. <i>Second,</i>
with respect to medical decision-making, in sum and substance, the
parties agreed that if there is a disagreement, the parties would follow
the recommendation of the child's pediatrician, but that either party
had a right to seek court intervention if they did not agree with the
decision (<i>see</i> Custody Stipulation, page 4). The Court does not find that provision to be manifestly unfair to either party. <i>Third,</i>
with respect to extracurricular activities, the parties, in sum and
substance, agreed that each child shall be entitled to participate in
one extracurricular activity with the cost being shared on a "50/50"
basis, with consent being required in order to trigger a financial
responsibility for same. The Court does not find this provision to be
unconscionable or manifestly unfair to one parties inasmuch as the
Plaintiff had the lower share of the parties' combined parental income
and agreed to split the cost on an equal basis and inasmuch as consent
is <i>required</i> to trigger a financial responsibility for same.
Likewise, the parties effectively conferred upon themselves joint
decision-making with respect to the area of extracurricular activities.
There is nothing unfair about that agreement.</p>
<p><i>Fourth,</i> the parties agreed to each of them would create a
music production space for C III in their basement and that they would
each pay for one session per month of C III's music production studio
activity until they have a studio. The Court does not find this
provision to be manifestly unfair or unconscionable inasmuch as the
parties agreed to provide a space for C III in order to save on costs of
this activity, the parties both agreed to this, effectively providing
them with joint decision-making over this issue, and that the Plaintiff
has the lower share of the parties' combined parental income. <i>Fifth,</i> the parties agreed that to send the children to summer camp and split the cost of same on a "50/50" basis (<i>see</i>
Custody Stipulation, page 5). The Court does not find this provision to
be manifestly unfair inasmuch as the agreement to send the children to
camp was a joint decision and inasmuch as they are equally splitting the
cost of same.The parties also agreed to an additional protection that
if there is going to be a change in camp, the party seeking the change
must obtain the agreement of the other before the nonrequesting is
obligated to pay his or her 50% of same.</p>
<p><i>Sixth,</i> with respect to schooling, the parties <i>agreed</i>
that C III and C A would attend a boarding school and that CH A would
attend a different independent school. The parties also agreed that with
respect to the actual choice of school, the parties would discuss same,
could then meet an educational consultant if they disagreed with the
other, with the Plaintiff having final decision-making authority in the
event of a further disagreement, without prejudice to the Defendant's
right to petition a court of competent jurisdiction. The Court does not
find this to be manifestly unfair or unconscionable inasmuch as the
parties <i>agreed</i> to send one child to an independent school and two
other children to boarding school. While the Defendant complains that
the children should be in public school, that is contrary to their <i>agreement</i>
that the children attend either an independent school or boarding
school, and, in any event, the Defendant had a remedy if he disagreed
with the decision: petition a court for relief.</p>
<p>Accordingly, and for all of the aforesaid reasons, it is hereby:</p>
<p>ORDERED, that so much of Branch (1) of the Defendant's Order to Show
Cause dated October 25, 2023 which seeks to set aside the Custody
Stipulation and the Financial Stipulation on the ground of
unconscionability be and the same is hereby DENIED.</p>
<p></p><h2>MODIFICATION OF CUSTODY</h2><p></p>
<p>The standard for modification of an existing custody or parental
access order is well-known. In order to modify an existing
court-sanctioned custody arrangement, there must be a showing of a
subsequent change in circumstances so that modification is required to
protect the best interests of the child. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=11645660211528941761&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Newton v. McFarlane,</i> 174 AD3d 67 (2d Dept. 2019)</a>; <a href="https://scholar.google.com/scholar_case?case=16973338366959054569&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Henrie v. Henrie,</i> 163 AD3d 927 (2d Dept. 2018)</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=12578702956946969911&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Feliciano v. King,</i> 160 AD3d 854 (2d Dept. 2018)</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=4518840702321957096&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Miller v. Shaw,</i> 160 AD3d 743 (2d Dept. 2018)</a>.
Not only must the moving party demonstrate that a change of
circumstances has occurred, but the moving party must also demonstrate
that modification is necessary to ensure the children's (or child's)
best interests. <i>See generally </i><a href="https://scholar.google.com/scholar_case?case=4389608916762562324&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Matter of Chris X. V. Jeanette Y.,</i> 124 AD3d 1013 (3d Dept. 2015)</a>. <i>See also </i><a href="https://scholar.google.com/scholar_case?case=833076347557300386&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Grayson v. Fenton,</i> 13 AD3d 914 (3rd Dept. 2004)</a>.</p>
<p>It is well-settled that the primary consideration in all custody disputes is the best interest of the child. <i>See </i><a href="https://scholar.google.com/scholar_case?case=17106037103577120794&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Keating v Keating,</i> 147 AD2d 675 (2d Dept. 1989)</a>.
It is further established that as a general rule, it is error as a
matter of law to make an order respecting custody based on controverted
allegations without having had the benefit of a full hearing (<i>see </i><a href="https://scholar.google.com/scholar_case?case=7192821285476938185&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Biagi v. Biagi,</i> 124 AD2d 770 (2d Dept. 1986)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=16248323450133001339&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Colley v. Colley,</i> 200 AD2d 839 (3d Dept. 1994)</a>), and custody determinations should generally be made only after a full and plenary hearing. <a href="https://scholar.google.com/scholar_case?case=3840743459444052379&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Palazzola v. Palazzola,</i> 188 AD3d 1081 (2d Dept. 2020)</a>; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=6346688433707323814&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Trazzera v. Trazzera,</i> 199 AD3d 855 (2d Dept. 2021)</a>.
A noncustodial parent seeking a change in custody is not automatically
entitled to a hearing, but must make an evidentiary showing sufficient
to warrant a hearing (<i>see </i><a href="https://scholar.google.com/scholar_case?case=11401006773575823567&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>McNally v McNally,</i> 28 AD3d 526, 527, 816 NYS2d 98 [2006]</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=17559293758156053902&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Simmons v Budney,</i> 5 AD3d 389, 390, 772 NYS2d 543 [2004]</a>; <a href="https://scholar.google.com/scholar_case?case=13837315131676669309&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Corigliano v Corigliano,</i> 297 AD2d 328, 329, 746 NYS2d 313 [2002]</a>; <a href="https://scholar.google.com/scholar_case?case=15963006899128645468&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>DiVittorio v DiVittorio,</i> 283 AD2d 390, 390-391, 723 NYS2d 863 [2001]</a>). <a href="https://scholar.google.com/scholar_case?case=5388053751402735099&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>DiVittorio v. DiVittorio,</i> 36 AD3d 848 (2d Dep't 2007)</a>.
However, while the general right to a hearing in custody and visitation
cases is not absolute, where facts material to the best interest
analysis, and the circumstances surrounding such facts, remain in
dispute, a hearing is required. <i>See </i><a href="https://scholar.google.com/scholar_case?case=3840743459444052379&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Palazzola v Palazzola, supra</i></a><i>; see also </i><a href="https://scholar.google.com/scholar_case?case=6346688433707323814&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Trazzera v. Trazzera, supra</i></a><i>. See also </i><a href="https://scholar.google.com/scholar_case?case=964444810196121482&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Stolzenberg v. Stolzenberg,</i> 209 AD3d 688 (2d Dept. 2022)</a>. The Court of Appeals has made clear:</p>
<blockquote>Given the goals of stability and permanency, as well as the
weight of the interests at stake, the societal cost of even an
occasional error in a custody proceeding is sizeable. Custody
determinations therefore require a careful and comprehensive evaluation
of the material facts and circumstances in order to permit the court to
ascertain the optimal result for the child. The value of a plenary
hearing is particularly pronounced in custody cases in light of the
subjective factors—such as the credibility and sincerity of the
witnesses, and the character and temperament of the parents—that are
often critical to the court's determination.</blockquote>
<p><a href="https://scholar.google.com/scholar_case?case=5770990753538545949&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>S.L. v. J.R.,</i> 27 NY3d 558 (2016)</a>.</p>
<p>Here, the Court finds that there are sufficient facts in dispute to
warrant a hearing on the Defendant's application seeking to modify the
parties' Custody Stipulation with respect to CH A. While some of the
Defendant's allegations predate the date of the Custody Stipulation (and
the Court has not considered those herein), the Court notes that the
Defendant has alleged that the Plaintiff has twice had CPS called on him
since the date of the Custody Stipulation. The Court notes that,
without contradiction, that the Plaintiff made a CPS complaint against
the Defendant on April 12, 2023 and that she filed a Family Offense
Petition on August 7, 2023 alleging that the Defendant abuses the
children. The Court cannot simply ignore or cast there allegations
aside. <i>See generally Matter of </i><a href="https://scholar.google.com/scholar_case?case=13606840510700021217&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Honeywell v. Honeywell,</i> 29 AD3d 857 (2d Dept. 2007)</a>
(repeated and unfounded allegations of abuse may constitute conduct
inconsistent with the best interests of the children). The Court has
considered that CH A is now eleven (11) years old, and while her wishes
and desires may be some indication of her best interests (<i>see generally </i><a href="https://scholar.google.com/scholar_case?case=3200582306042902639&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Silverman v. Silverman,</i> 186 AD3d 123 (2d Dept. 2020)</a>), a child's preference is not determinative (<i>see generally Matter of </i><a href="https://scholar.google.com/scholar_case?case=15821851866087834842&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Ceballos v. Leon,</i> 134 AD3d 931 (2d Dept. 2015)</a>).</p>
<p>Additionally, the Court has considered the unrefuted allegation of
the AFC that CH A has witnessed the Defendant use extreme corporal
punishment on her brothers. However, the Court has also considered that
there was an incident — after the Custody Stipulation — where CH A
(again) attempted self-harm (confirmed by the AFC). While the Court is
unsure what the impetus was for that self-harm, the Court cannot ignore
that undisputed fact, and the Court must take live testimony from the
parties to ascertain how CH A was impacted (if at all), and whether or
not the existing custodial arrangement remains in the best interests of
CH A. This Court would effectively be abdicating its duty to this child
if it did not take live testimony from the parties, given the
seriousness of the allegations proffered by both parties. Furthermore,
since the Defendant's application only seeks a transfer of custody of CH
A, and not her two brothers, this Court must consider the effect such a
transfer would have on CH A and well as on her two brothers, as sibling
relationships should be not disrupted unless there is some overwhelming
need to do so. <i>See generally </i><a href="https://scholar.google.com/scholar_case?case=11427080946237451741&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>White v. White,</i> 209 AD2d 949 (4th Dept. 1994)</a>.
Since custody determinations depend to a great extent upon the court's
assessment of the credibility of the witnesses, as well as the parties'
character, temperament and sincerity (<i>see Matter of </i><a href="https://scholar.google.com/scholar_case?case=14414501729169613945&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Brass v. Otero,</i> 40 AD3d 752 (2d Dept. 2007),</a> it is hereby:</p>
<p>ORDERED, that Branch (3) of the Defendant's Order to Show Cause dated
October 26, 2023, be and the same is hereby REFERRED TO A HEARING.</p>
<p></p><h2>CONTEMPT OF COURT</h2><p></p>
<p>Contempt is a <i>drastic</i> remedy which should not be granted absent a clear right to the relief. <a href="https://scholar.google.com/scholar_case?case=393582763408819338&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Pinto v. Pinto,</i> 120 AD2d 337 (1st Dept. 1986)</a> (emphasis added); <i>see also Board of Mgrs. of the Empire Condominium v. Attwood,</i> 2014 NY Misc. LEXIS 2265 (Supreme Court New York County 2014); <i>see also </i><a href="https://scholar.google.com/scholar_case?case=3187634964142476905&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Usina Costa Pinto SA v. Sanco Sav Co. Ltd.,</i> 174 AD2d 487 (1st Dept. 1991)</a>. Contempt is a drastic remedy which necessitates <i>strict compliance with procedural requirements. </i><a href="https://scholar.google.com/scholar_case?case=6416561747119797859&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Loeber v. Teresi,</i> 256 AD2d 747 (3d Dept. 1998)</a> (emphasis added); <i>see also C.M. v. E.M.,</i> 2023 NY Misc. LEXIS 22693 (Supreme Court Nassau County 2023); <i>see also </i><a href="https://scholar.google.com/scholar_case?case=7994176993316314981&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>S.P. v. M.P.,</i> 210 AD3d 1439 (4th Dept. 2022)</a>.</p>
<p>Pursuant to Judiciary Law § 753(A)(3):</p>
<blockquote>"A court of record has power to punish, by fine and
imprisonment, or either, a neglect or violation of duty, or other
misconduct, by which a right or remedy of a party to a civil action or
special proceeding, pending in the court may be defeated, impaired,
impeded, or prejudiced, in any of the following cases:</blockquote>
<blockquote>* * *</blockquote>
<blockquote>"3. A party to the action or special proceeding, an
attorney, counsellor, or other person, for the non-payment of a sum of
money, ordered or adjudged by the court to be paid, in a case where by
law execution can not be awarded for the collection of such sum except
as otherwise specifically provided by the civil practice law and rules;
or for any other disobedience to a lawful mandate of the court."</blockquote>
<p></p><h2><i>School Tuition</i></h2><p></p>
<p>The Plaintiff does not dispute the Defendant's claims that the TRO's
with respect to the payment of the Rectory School, Hebron Academy and
the Hyde School have been paid. The Plaintiff does not submit any
evidence that any additional tuition fees are due beyond the parameters
of the TRO's. Accordingly, it is hereby:</p>
<p>ORDERED, that Branches (a) and (c) of the Plaintiff's Order to Show
Cause for Contempt dated December 20, 2023 be and the same are all
hereby deemed MOOT.</p>
<p></p><h2><i>Other Add-On Expenses</i></h2><p></p>
<p>The Financial Stipulation provides:</p>
<blockquote>The parties shall equally divide the cost of the children's
add-on expenses, including their agreed upon extracurricular activities,
their unreimbursed medical, dental, orthdontia and optical expenses,
their educational expenses such as: Private school tuition,
applications, tutoring.</blockquote>
<blockquote>The parties shall continue to use Our Family Wizard and
equally share the cost of same. All invoices and receipts in connection
with add-on expenses for the children <i>must</i> be uploaded into Our
Family Wizard within 30 days of incurring such debt, and reimbursement
to the parent that paid the cost must be made within 15 days of
presentation with the receipt/invoice.</blockquote>
<blockquote>The parties agree that with respect to tuition for the
children's private school education, the father shall pay his 50 percent
of the children's tuition cost directly to the mother via Zelle or some
other ACH payment, and that the mother shall remit the full payment of
the tuition to the school. The mother shall provide the father with all
invoices and receipts in connection with the tuition in a timely fashion
so that he knows when to make such payment and that the payment has
been made.</blockquote>
<p>(<i>see</i> Financial Stipulation, page 4) (emphasis added).</p>
<p>Here, the Court is constrained to deny the Plaintiff's application
for contempt without prejudice and with leave to renew upon the
submission of proper papers. While it would appear that some of the Our
Family Wizard entries, themselves, are appended to the Plaintiff's
moving papers, the Plaintiff fails to append the actual invoice and
proof of payment to her moving papers with respect to some of those
expenses, such as camp and some of the tuition invoices. Without the
actual invoice and proof of payment, this Court is unable to grant the
Plaintiff the <i>drastic</i> remedy of contempt at this time, as that
evidence should have been before the Court. It also appears from the
Plaintiff's moving papers that there are invoices or receipts from her
"gmail" account, but the Court is unsure, based on this Record, as to
whether or not those were posted to Our Family Wizard, as mandated by
the parties' Financial Stipulation. Rather than deny the request
outright, since these expenses are for the benefit of the parties'
children, the Court grants the Plaintiff leave of Court to re-file the
application with the appropriate proof appended thereto. Accordingly, it
is hereby:</p>
<p>ORDERED, that Branches (b) and (d) of the Plaintiff's Order to Show
Cause for Contempt dated December 20, 2023 be and the same are all
hereby DENIED WITHOUT PREJUDICE and with leave to renew upon the
submission of proper papers insofar as indicated herein.</p>
<p></p><h2>COUNSEL FEES/SANCTIONS</h2><p></p>
<p>The Plaintiff seeks both sanctions and counsel fees. The Court has
carefully reviewed the invoices appended to the Plaintiff's moving
papers (<i>see</i> NYSCEF Document No.: 334) and cross-moving papers (<i>see</i>
NYSCEF Document No.: 353). The Court notes that both sets of invoices
contain charges dating back to 2021, which was before the parties agreed
to the terms of the Stipulation(s), and that there appears to be
charges related to Family Court matters. The Court is unable to
ascertain what time charges were incurred after the parties entered into
both Stipulation(s), and, even if they do post-date the Stipulation(s),
whether or not those charges pertain the family court matters or these
matters inasmuch as those times charges are not isolated with enough
specificity. The Court therefore denies the Plaintiff's application for
sanctions and/or counsel fees without prejudice to her right to re-file
the application with the time charges incurred in connection herewith
isolated, indicated or specifically denoted on her invoices.
Accordingly, it is hereby:</p>
<p>ORDERED, that Branch (e) of the Plaintiff's Order to Show Cause for
Contempt dated December 20, 2023 and Branch (1) of the Plaintiff's
Notice of Cross-Motion dated January 10, 2024 be and the same are all
hereby DENIED WITHOUT PREJUDICE and with leave to renew/refiling upon
the submission of proper papers insofar as indicated herein.</p>
<p>Any other relief requested not specifically addressed herewith is hereby DENIED.</p>
<p>All parties and counsel and the attorney for the children are hereby
directed to appear in the Supreme Court, Nassau County, before the
undersigned Justice at the Matrimonial Center in IAS/Matrimonial Part 11
on March 26, 2024 at 10:00 a.m. for a PRE-HEARING CONFERENCE and to
select a hearing date.</p>
<p>The foregoing constitutes the DECISION & ORDER of this Court.</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[1]" name="[1]">[1]</a> The Custody Stipulation was <i>so ordered</i> by the undersigned Justice on April 12, 2023.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[2]" name="[2]">[2]</a> The Financial Stipulation was <i>so ordered</i> by the undersigned Justice on April 12, 2023.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[3]" name="[3]">[3]</a>
At times hereinafter in this Decision and Order, the Custody
Stipulation and the Financial Stipulation may be collectively referred
to as the "Stipulation(s)".</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[4]" name="[4]">[4]</a> In the absence of the undersigned Justice.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[5]" name="[5]">[5]</a>
He sets forth that the complaints were made as follows: November 24,
2020, determined as unfounded on March 25, 2021; November 14, 2022,
determined unfounded on May 1, 2023; February 2, 2023, determined to be
unfounded on May 1, 2023; April 12, 2023, determined to be unfounded on
May 1, 2023; and August 7, 2023, determined to be unfounded on August
25, 2023.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[6]" name="[6]">[6]</a>
The AFC sets forth that the Final Order of Protection, in sum and
substance, requires the Defendant to stay away from the Plaintiff, C III
and C A, and directs the Defendant to refrain from communication with
the Plaintiff, C III and C A, except for parenting or the well-being of
the children, as well as directing the Defendant to refrain from
committing any hazardous acts with respect to all three children.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[7]" name="[7]">[7]</a> The Second Department has also emphasized that stipulations are not to be lightly case aside <i>especially where the party seeking to vacate the stipulation was represented by counsel. </i><a href="https://scholar.google.com/scholar_case?case=11323505990911702926&q=NJL+v+CAL&hl=en&as_sdt=4,33"><i>Kelly v. Chavez,</i> 33 AD3d 590 (2d Dept. 2006)</a>.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[8]" name="[8]">[8]</a> <i>See</i> Custody Stipulation, page 10, lines 16-19; <i>see</i> Financial Stipulation, page 20, lines 8-11.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[9]" name="[9]">[9]</a>
In both the Custody Stipulation and Financial Stipulation, this Court
wishes to punctuate that it specifically told the parties that they had
the right to proceed to trial with respect to the issues that they
agreed to settle.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[10]" name="[10]">[10]</a> The Court also notes that the Financial Stipulation itself provides the following:
</p><p>THE COURT: Are you each satisfied with the representation you have received?</p>
<p>MS. L: Yes.</p>
<p>MR. L: Yes.</p>
<p>The Court finds that the Defendant's on the Record acknowledgment
that he was satisfied with the representation he received from his
counsel defeats his claim that his attorney was "bulldozed".</p><p></p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[11]" name="[11]">[11]</a> $1,700.00 per month × 12 (monthly per year) × 11 (approximate years remaining on his child support obligation) = $224,400.00.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[12]" name="[12]">[12]</a> The Defendant does not allege that he made an application to adjourn the trial and was denied this request.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=17732418542060584289&q=NJL+v+CAL&hl=en&as_sdt=4,33#r[13]" name="[13]">[13]</a>
It does not appear to the Court that the Defendant claims that the
parental access schedule, both regular and holiday and summer, to be
unconscionable or manifestly unfair. Therefore, those provisions of the
Custody Stipulation are not discussed herein."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-44379436424583481842024-02-19T10:44:00.000-05:002024-02-19T10:44:03.312-05:00FIGHTING COCKROACHES IN COURT<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/b36b/cockroach_roach_german_cockroach.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="735" data-original-width="800" height="735" src="https://free-images.com/lg/b36b/cockroach_roach_german_cockroach.jpg" width="800" /></a></div><br />Diego Beekman Mutual Housing Association v. Hammond, Date filed: 2024-02-09, Court: Civil Court, Bronx, Judge: Judge Shorab Ibrahim, Case Number: 314834/2022:<p></p><p>"This is a non-payment proceeding. It has been on the Part J calendar since early August 2023 and adjourned numerous times. Several adjournments resulted as respondent attempted to find counsel of her own. Finally, on January 10, 2024, a referral to MFJ [Emilio Paesano] was made in court. On January 31, 2024, MFJ filed a notice of appearance, together with an order to show cause seeking, inter alia, an order from the court issuing a “C” class violation for roach infestation as the subject apartment and an order directing petitioner to correct (order to correct) said violation by a date certain. The motion is supported with respondent’s affidavit. In relevant part, she states she has lived in the apartment since 1977 and that she has a roach infestation that the landlord’s efforts have not solved. Attached to the motion are photographs taken on January 30, 2024, depicting, among other things, what appears to be a serious roach infestation inside the apartment, including inside of the fridge.</p><p>On February 7, 2024, petitioner’s application to oppose the motion in writing was granted to the extent of adjourning the case to February 9, 2024. Petitioner timely filed opposition on February 8, 2024. Included in the opposition is a document styled as a “client affidavit” from one Tyheesha Boone. (see NYSCEF Doc. 36). Respondent filed a letter correspondence, rejecting the affidavit as not in proper form because it does not comply with CPLR §2106. The court deems this letter a reply.</p><p>The recently amended CPLR §2106 states as follows:</p><p>The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:</p><p>I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.</p><p>(Signature)</p><p>The Boone document does not comply with this provision. While the proposed affiant purports to “being duly sworn,” none of the above language [or substantially similar language] appears in the document. The language is not merely a suggestion but is mandatory. (see People v. Ricken, 29 AD2d 192, 193 [3rd Dept. 1968] (in the absence of ameliorating or qualifying language or showing of another purpose, the word ‘shall’ is deemed to be mandatory) [quotations and citations omitted]).</p><p>The practical effect of this is that respondent’s affidavit remains unrefuted. Even if the court were to consider the Boone document, it does not, as a matter of law, raise a defense to an order to correct in that it entirely focuses on the alleged lack of notice and access. (see D’Agostino v. Forty-Three E. Equities Corp., 12 Misc. 3d 486, 489-490 [Civ Ct, New York County 2006] aff’d on other grounds, 16 Misc. 3d 59 [App Term, 1st Dept 2007] (“The few defenses to an order to correct include lack of standing or jurisdiction, completed repairs, conditions are not code violations, notice of violation is facially insufficient, respondent is no longer the owner and economic infeasibility.”). The Boone document also alleges attempts to address the roach problem, but concedes the problem exists even as it casts blame on the respondent. However, respondent conceded that extermination services were provided on February 8, 2024. Respondent did not concede that the alleged infestation had been resolved. Consequently, the court held a hearing to determine whether the alleged infestation existed at the time of the hearing (a potential defense). If so, the court must determine whether the condition constitutes a violation under the Housing Maintenance Code (aka NYC Administrative Code). If so, the court must determine whether an order to correct should be issued.</p><p>The Hearing</p><p>Respondent’s credible and unrefuted testimony was as follows: she has lived with a terrible roach problem for some time;1</p><p>that extermination, including vacuuming and spray poison was done on February 8, 2024; that the infestation remained. Respondent submitted several photographs and one video into evidence. Each was taken after the extermination services provided on February 8, 2024. The photographs clearly show evidence of roaches (R1, R3, R4, R6). The video shows crawling roaches in a bedroom closet. In sum, respondent stated she sees roaches all the time and all throughout the apartment.</p><p>Other Evidence</p><p>As stated above, respondent’s January 31, 2024 affidavit stands largely unrefuted; no one with personal knowledge disputes the assertions that while petitioner has sprayed poison, it has never investigated for roach nests or roach waste, has not sealed holes and cracks, and has not identified and stopped the source of moisture seeping into the apartment. (see NYSCEF Doc. 27, par. 9-11). In fact, the Boone document largely confirms respondent’s statements. In any event no proof was offered that integrated pest management, as required by the NYC Administrative Code and Local Law 55 of 2018, was ever even partially attempted prior to February 8, 2024.</p><p>Petitioner did not present any witnesses or other evidence. However, petitioner’s counsel argues that the evidence does not support an “infestation” finding.</p><p>Findings</p><p>The record clearly establishes a roach infestation in the subject apartment by a preponderance of evidence. (see Singletary v. Residential Mgmt, Inc., 77 Misc. 3d 20, 21 [App Term, 1st Dept. 2022] (noting preponderance of evidence standard in HP case)). While the effects of petitioner’s February 8, 2024 attempts cannot yet be fully known, there was sufficient proof of live roaches in various areas of the apartment both before and after the treatment.</p><p>Order to Correct and Notice of Violation</p><p>The law is clear that the existence of violations may be proved by DHPD or inspection reports,…other governmental computerized records, photographs, or through testimony. (see Scherer and Fisher, Residential Landlord-Tenant Law in New York §19:65 [2019 Update]; Mite v. Pipedreams Realty, 190 Misc. 2d 543, 544 [Civ Ct, Bronx County 2002]; see also NYC Admin Code §27-2115(h)(1) ["If the court finds a condition constituting a violation exists, it shall direct the owner to correct the violation"] [emphasis added]).</p><p>Here, that condition is serious. Indeed, the condition can fairly be described as atrocious. The court finds respondent’s statement that she lives in squalor truthful. (see NYSCEF Doc. 27, par. 6). As such, the court finds that the condition constitutes a class “C” violation — for roach infestation throughout the apartment known as 4-B at 305 St. Ann’s Avenue, Bronx, NY 10454. (see NYC Admin Code §27-2017.4(b) (“[T]he presence of cockroaches, mice or rats in any room in a dwelling unit in a multiple dwelling or a common area shall constitute an immediately hazardous violation of this code…”) [emphasis added]; see also Torres v. Sedgwick Ave. Dignity Developers, LLC, 77 Misc. 3d 1209(A), 1 [Civ Ct, Bronx County 2022] (class “C” violations are “immediately hazardous”) [citation omitted]).</p><p>Petitioner does not oppose entry of an order to correct on any procedural ground. In any event, the court may “employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards.” It can do so “regardless of the relief originally sought.” (see NYC Civil Court Act §110(C); D’Agostino v. Forty-Three E. Equities Corp., 12 Misc. 3d at 489). The court undoubtedly has the power to enforce housing standards. (see NYC Civil Court Act §203(o)). In other words, the court may issue orders to correct in non-payment cases.</p><p>Petitioner is directed to abate the class “C” violation listed above within (21) days of service of this on petitioner by respondent. Such service can be through NYSCEF upload, with Notice of Entry. (see NYC Admin Code §27-2017.4(C) (“The date for correction of an immediately hazardous violation for cockroaches, mice, or rats shall be twenty-one days after service of the notice of violation as provided on such notice.”)). Petitioner must comply with all relevant laws, codes, and requirements in abating the condition, including, but not limited to, Local Law 55 of 2018 and NYC Admin Code §27-2017.8.</p><p>Respondent shall provide reasonable access, as required, upon (24) hours’ notice.</p><p>Upon default, respondent may move for any appropriate relief including, but not limited to, an order holding petitioner in contempt and/or an order assessing civil penalties. (see Dole v. 106-108 West 87th Street Owners, Inc., 13 Misc. 3d 1241(A), 7 [Civ Ct, New York County 2006] (“The owner’s failure to comply may result in contempt and/or the imposition of civil penalties.”); NYC Civil Court Act §110(e)).</p><p>Conclusion</p><p>Based on the foregoing, respondent’s motion is granted to the extent stated herein. These proceedings are adjourned to March 13, 2024 at 9:30 AM. If respondent intends to move for leave to file a late answer, a motion must be made at least (10) days in advance of the return date. This constitutes the decision and order of the court. It will be emailed to the parties."</p><div><br /></div><div><br /></div><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-4541229494528382712024-02-18T11:56:00.001-05:002024-02-18T11:56:29.782-05:00NON-PAYMENT SUMMARY PROCEEDING AND MONTH TO MONTH TENANTS<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/cbeb/tales_my_landlord_1st.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="800" data-original-width="441" height="800" src="https://free-images.com/lg/cbeb/tales_my_landlord_1st.jpg" width="441" /></a></div><br />109th Affordable Housing L.L.C. v. Beck, Date filed: 2024-01-31, Court: Civil Court, New York, Judge: Judge Karen May Bacdayan, Case Number: LT-312349-23/NY:<br /><br />"Can a Nonpayment Proceeding Commenced Pursuant to RPAPL 711 (2) Be Maintained Against a Month-to-Month Tenant as Defined by Real Property Law §232-c?<p></p><p>As this court has previously held, the law in the First Judicial Department is clear that for a landlord to commence a summary eviction proceeding pursuant to RPAPL 711 (2), it must be based upon an agreement to pay rent.</p><p>The RPAPL provides that a nonpayment proceeding may be maintained against a tenant when:</p><p>“The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a written demand of the rent has been made with at least fourteen days’ notice requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon [them] as prescribed in section seven hundred thirty-five of this article (emphasis added).” (RPAPL 711 (2).)</p><p>RPL §232-c states:</p><p>“Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant’s holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term.”</p><p>In 1969, 10 years after RPL §232-c was enacted. Jaroslow v. Lehigh Valley R. Co., 23 NY2d 991 (1969) parsed the meaning of the statute. Notwithstanding that Jaroslow did not involve a summary eviction proceeding commenced pursuant to RPAPL 711 (2), Jaroslow provides guidance and comports with more recent First Department caselaw. In Jaroslow, the Court of Appeals held that if no rent is accepted after the end of the lease term, then no month-to-month tenancy is created. The Jaroslow court held that “[an] action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant and never paid by tenant, does not lie, there being no tenancy in fact or at law obligating the tenant for such rent.” (Jaroslow, 23 NY2d at 993.) In other words, rent must be tendered by the tenant and accepted by the landlord after the expiration of a lease term in order to create a month-to-month tenancy.</p><p>In 120 Bay St. Realty Corp. v. City of New York, 44 NY2d 907 (1978), the plaintiff’s lease term had expired without the City’s formal exercise of the lease renewal option, although the plaintiff continued in possession pursuant to a holdover provision in the lease. (See 120 Bay St. Realty Corp., 59 AD2d 527, 528-529 [2d Dept 1977. Shapiro, J., dissenting], revd 44 NY2d 907 [1978].) The Court of Appeals made a clear distinction between an extension of a lease term and an extension of a tenancy as a month-to-month tenant, observing that “defendant occupies the subject premises as a month-to-month tenant rather than as a tenant under a valid and existing lease (emphasis added).” (120 Bay St. Realty Corp., 44 NY2d at 909.)</p><p>Subsequent Appellate Division. First Department case law, discussed infra, is consistent with Jaroslow and 120 Bay Street Realty Corp. and advises that while a month-to-month tenancy is created by the acceptance of rent in any given month, a month-to-month tenancy is just that; a tenancy from month to month. Put another way, a tenancy created by the payment of rent for the month in which rent is paid expires at the end of that month and can only be renewed by the payment of rent the next month.</p><p>Forty-two years after Jaroslow was decided, the Appellate Division, First Department held in Bleecker St. Tenants Corp. v. Bleeker Jones LLC, 65 AD3d 240, 245-246 (1st Dept 2009), revd on other grounds, 16 NY3d 272 (2011), that it is improper to maintain a nonpayment proceeding against an unregulated month-to-month tenant for rent not paid after the end of any given month, because “each month is a new term for a new period, each a separate and new contract (emphasis added, internal citations omitted).” In other words, when a month-to-month tenancy is created by the acceptance of rent at the end of a lease for a fixed term, see Jaroslow and 120 Bay St. Realty Corp., that month-to-month tenancy expires at the end of the month. A new agreement is created only by paying rent on or about the first of the next month, and, if no rent is paid, there is no longer a valid contract under which to sue for rent.3 Practically speaking, it follows that a landlord whose tenant becomes a month-to-month tenant and then ceases to pay rent is relegated to a summary holdover proceeding based on the expiration of a term for a definite time.</p><p>In N. Shore Community Servs., Inc. v. Community Dr. LLC, 120 AD3d 1142 (1st Dept 2014), the court found that the language in the lease negated the formation of a month-to-month tenancy and was an example of what the legislature meant by the phrase “unless an agreement either express or implied is made providing otherwise.” (RPL 232-c.) The court held that the lease which comprised certain language was “such an agreement.” (N. Shore Community Servs., Inc, 120 AD3d at 1143.) The lease specifically negated recognition of a month-to-month tenancy at lease expiration and provided that “upon plaintiff’s default of its obligation to surrender the premises at the end of the lease term, plaintiff’s continued occupation of the premises, with or without defendant’s consent or acquiescence, will be treated as a tenancy at will and ‘in no event’ a tenancy from month to month.” (Id.) Thus, plaintiff’s argument that a month-to-month tenancy was created by the tender and acceptance of rent was refuted by the express language in the lease. Here, there is no such language apparent in respondent’s expired lease. (NYSCEF Doc No. 15, respondent’s exhibit B, respondent’s expired lease.)4</p><p>More apropos authority can be found in Appellate Term, First Department decisions which, unlike the Court of Appeals and Appellate Division, First Department decisions discussed supra, involve RPAPL 711 (2) and the requirement that a nonpayment proceeding may be maintained against a tenant pursuant to the agreement under which the premises are held.</p><p>Most recently in 6 W. 20th St. Tenants Corp. v. Dezertzov, 75 Misc 3d 135 (A), 2022 NY Slip Op 50529 (U) (App Term, 1st Dept 2022), cited by respondent, the court held, “[a]though the petition alleged the existence of a written lease between the parties, petitioner admitted at trial that it was not in possession of any proprietary lease, share certificate, transfer agreement or other direct evidence of any lease agreement with respondents[.]” (6 W. 20th St. Tenants Corp., 2022 NY Slip Op 50529 [U]. *2.) The decision contains no analysis of month-to-month tenancies as, apparent from the trial court decision, the issue never arose. Petitioner attempted at trial to prove a lease agreement through circumstantial evidence which the trial court found to be “inconsistent” and “unreliable.” (6 W. 20th St. Tenants Corp. v. Dezertzov, 71 Misc 3d 1226 [A], *10 [Civ Ct, New York County 2021].) In dismissing the proceeding, commenced pursuant to RPAPL 711 (2), for petitioner’s failure to prove its prima facie case, the trial court cited to Stern v. Equitable Trust Co. of NY, 238 NY 267, 269 (1924), for the proposition that “[t]he relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence (internal citation and quotation marks omitted).” (Id., *2.) The trial court noted that “[p]ursuant to RPAPL 711 (2), a nonpayment proceeding must be based on a default in the payment of rent pursuant to an agreement under which the premises are held (internal quotation marks omitted).” (Id.) In affirming the decision, the Appellate Term also held that “[a] nonpayment proceeding may only be maintained to collect rent owed pursuant to an agreement between the parties, express or implied,” citing to West 152nd Assoc., L.P. v. Gassama, 65 Misc 3d 155 (A), 2019 NY Slip Op 51926 (U) (App Term. 1st Dept 2019) (6 W. 20th St. Tenants Corp., 2022 NY Slip Op 50529 [U], *1-2.) In Gassama, the Appellate Term noted at *1,</p><p>“The Court also properly rejected landlord’s claim that tenant became a month-to-month tenant after the expiration of the November 2014 license agreement, since that document expressly indicated that the rights of the Licensee shall not be deemed to be or construed as a month-to-month tenancy…. Moreover, even assuming that a month-to-month tenancy was created following expiration of the license agreement, there was no agreed rental amount for any month ensuing after tenant ceased paying rent (internal quotation marks omitted. emphasis added).”</p><p>In Krantz & Phillips, LLP v. Sedaghati, 2003 NY Slip Op 50032 (U) (App Term, 1st Dept 2003), a proceeding commenced pursuant to RPAPL 711 (2), the Appellate Term, First Department affirmed dismissal of a nonpayment petition which sought rent for January 2022 and February 2022, but was premised upon a lease that expired October 31, 2021. The court held that “[e]ven assuming that a month-to-month tenancy was created following expiration of the lease, there was no agreed upon rental for any month ensuing after tenant ceased paying rent and no basis for holding tenant contractually liable for the rent reserved in the expired lease (internal citation omitted).” (Sedaghati, 2003 NY Slip Op 50032 [U], *1.) Citing to Jaroslow, the court noted the landlord was consigned to commencing a holdover proceeding in which it could seek use and occupancy. (Id.)"</p><div><br /></div><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-46138362802567497192024-02-12T07:34:00.002-05:002024-02-12T07:34:47.407-05:00THE DATING DIVORCEE<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://onceuponascreen.files.wordpress.com/2015/04/15.jpg?w=798" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="331" data-original-width="236" height="640" src="https://onceuponascreen.files.wordpress.com/2015/04/15.jpg?w=798" width="456" /></a></div><br />Allen v. Allen, 2023 NY Slip Op 6588 - NY: Appellate Div., 1st Dept. 2023:<p></p><p>"However, it was an improvident exercise of the court's discretion to
preclude the parties from bringing romantic partners to the marital
residences. While under Domestic Relations Law § 234, the court has some
discretion to make orders regarding possession of property under the
circumstances of each case, nothing in the record demonstrates that the
presence of the husband's romantic partner at one of the marital
residences in any way impacted plaintiff wife's safety. A party going
through a divorce has "a right to develop his or her interests or
personal life" (<a href="https://scholar.google.com/scholar_case?case=2497433352398940479&q=allen+v+allen&hl=en&as_sdt=4,33&as_ylo=2023"><i>Rosenberg v Rosenberg,</i> 126 AD2d 537, 540-541</a>
[2d Dept 1987]). At most, the interactions with the romantic partner,
which by all accounts were civil, made the wife uncomfortable, and
discomfort is an insufficient basis to exclude an otherwise
non-problem-causing party, particularly where children are not involved."</p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-76752509055745388852024-02-05T09:05:00.000-05:002024-02-05T09:05:01.674-05:00CHILD WELFARE MASSACHUETTS - OCA COMPLAINT<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/6b03/boston_massachusetts_fenway_park.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="502" data-original-width="800" height="502" src="https://free-images.com/lg/6b03/boston_massachusetts_fenway_park.jpg" width="800" /></a></div><br />Posting this for my future use:<p></p><p></p><p align="center" class="MsoNormal" style="text-align: center;"><b><i><span style="font-family: "Georgia",serif;">***Please note that OCA staff are mandated
reporters. While the OCA says that complaints are confidential, the staff could
file a 51A if they receive information about possible neglect or abuse.***<o:p></o:p></span></i></b></p>
<p class="MsoNormal"><b><span style="font-family: "Georgia",serif;"><o:p> </o:p></span></b><span style="font-family: Georgia, serif;">The Office of the
Child Advocate’s (OCA) Complaint Line is a resource for any person, in their
professional or personal capacity, who has a concern about the quality of state
services a child is receiving or a concern that a child is not receiving state services
for which they are eligible. The Complaint Line also serves as a resource to
anyone who needs assistance obtaining information about state services to
children or assistance navigating state services for children. OCA staff assist
callers on the Complaint Line with their individual concerns and questions and
the OCA uses the Complaint Line as a source of trend data to inform the OCA’s
advocacy at the policy and systems level. This information is valuable in
contributing to the OCA’s understanding of the intersection of policy and
practice and fulfilling the OCA’s mission to identify gaps in state services
and recommend practice and policy improvements. </span></p>
<p class="MsoNormal"><span style="font-family: Georgia, serif;">The OCA provides
information to callers on how to address their concerns within the state
service system. When the OCA determines that a situation brought to its
attention through the Complaint Line requires OCA directed follow-up with a
state agency, the OCA will conduct that follow-up with the consent of the
Complaint Line caller. The Complaint Line has very strict confidentiality
standards and so the OCA cannot always share their level of follow-up with a
state agency or share what steps were taken to mitigate any OCA concerns.
However, the OCA can provide callers with information about whether the OCA’s
concerns have been alleviated or whether the OCA has continuing concerns
regarding a situation. </span></p>
<p class="MsoNormal"><span style="font-family: Georgia, serif;">The OCA Complaint
Line does not take live calls. We strive to respond to our callers within two
business days. We invite callers to contact us by phone at (617) 979-8360, or
through e-mail at </span><a href="mailto:childadvocate@mass.gov." style="font-family: Georgia, serif;">childadvocate@mass.gov</a><span style="font-family: Georgia, serif;">.</span></p><br /><p></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-27256770237601726132024-02-03T10:45:00.003-05:002024-02-03T10:45:59.915-05:00FORCED MEDICATION<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/0693/drugs_pill_medication_medicine.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="600" data-original-width="800" height="600" src="https://free-images.com/lg/0693/drugs_pill_medication_medicine.jpg" width="800" /></a></div><br />Currently in Massachusetts, I deal with similar issues regarding antipsychotic medications and children. <p></p><p>The following cases are from NY but here the patient is not a child but an incarcerated adult. The standard is the same, basically centering around a best interest determination. The first decision from June 2023 sets forth a certain medication and the second decision from January 2024 deals with having to change the medication.</p><p>1. MATTER OF WIKTORKO, 2023 NY Slip Op 50667 - NY: Supreme Court, Washington 2023:</p><p>"Following a hearing in this treatment over objection application the
Court previously ruled in favor of the Petitioner and ordered treatment.
The Court now sets forth its reasoning.</p>
<p>Respondent — who is 50 years of age — was convicted of 4 counts of
assault in the first degree in 2000 and sentenced to 96 years to life in
prison. He suffers from schizoaffective disorder, bipolar type, and has
an extensive history of noncompliance with his medications, resulting
in psychiatric decompensation, violence, and disciplinary infractions.
Two previous applications for treatment over objection have been
granted, with one Order issued on July 21, 2016 and expiring July 20,
2017, and the other issued on June 20, 2021 and expiring on June 27,
2022.</p>
<p>Respondent is presently incarcerated at the Great Meadow Correctional
Facility in Comstock, Washington County, and has refused to take his
medications since approximately December 2022. On April 4, 2023, he was
admitted to Great Meadow's Central New York Psychiatric Center Satellite
Unit (hereinafter the Great Meadow CNYPCS) "due to an acute psychotic
episode in the context of noncompliance with his psychiatric
medication." Specifically, respondent has been having "hallucinations;
religious, persecutory, and grandiose delusions; yelling and screaming;
disorganized and tangential thought process[es]; [and] poor hygiene
practices (hoarding urine, not flushing his toilet, covering cell bars
in feces.)"</p>
<p>According to Julio Riascos, M.D. — his treating psychiatrist —
respondent should be treated with Haloperidol (Haldol) Decanoate, 50 to
300 milligrams intramuscularly every four (4) weeks. Riascos attempted
to discuss this recommended treatment with respondent, describing the
encounter as follows:</p>
<blockquote>"When undersigned tried to educate [respondent] about the
therapeutic benefits and side effects of antipsychotic medications, he
stated, `If you give it to me, I'll give them to somebody else. . .
Trilafon. I didn't need it. It's the supernatural. It made me read my
mind. . . Santeria. . . witchcraft. It's prohibited, they can spread
disease like that!'</blockquote>
<blockquote>"Undersigned asked again for clarification of his specific
treatment objection, and [respondent] responded, `I don't want Haldol
because it disconnects me from God. The FDA, their administration is a
gang. FDA is bad, period!' At this point [respondent] began to mumble to
himself and could not engage in an effective manner due to distracting
internal stimulations, indicating the presence of hallucinations."</blockquote>
<p>Presently before the Court is the application of petitioner Dustina
Wiktorko, Unit Chief of the Great Meadow CNYPCS, seeking authorization
to administer the recommended treatment to respondent over his
objection. The relief requested is based upon the seminal case of <a href="https://scholar.google.com/scholar_case?case=12167532942286784057&q=wiktorko&hl=en&as_sdt=4,33&as_ylo=2023"><i>Rivers v Katz</i> (67 NY2d 485 [1986]) (hereinafter <i>Rivers</i>)</a>, wherein the Court of Appeals held as follows:</p>
<blockquote>"[I]n situations where the State's police power is not
implicated, and the patient refuses to consent to the administration of
antipsychotic drugs, there must be a judicial determination of whether
the patient has the capacity to make a reasoned decision with respect to
proposed treatment before the drugs may be administered pursuant to the
State's <i>parens patriae</i> power. The determination should be made
at a hearing following exhaustion of the administrative review
procedures provided for in 14 NYCRR 27.8. The hearing should be de novo,
and the patient should be afforded representation by counsel. The State
would bear the burden of demonstrating by clear and convincing evidence
the patient's incapacity to make a treatment decision. If, after duly
considering the State's proof, the evidence offered by the patient, and
any independent psychiatric, psychological or medical evidence that the
court may choose to procure, the court determines that the patient has
the capability to make his own treatment decisions, the State shall be
precluded from administering antipsychotic drugs. If, however, the court
concludes that the patient lacks the capacity to determine the course
of his own treatment, the court must determine whether the proposed
treatment is narrowly tailored to give substantive effect to the
patient's liberty interest, taking into consideration all relevant
circumstances, including the patient's best interests, the benefits to
be gained from the treatment, the adverse side effects associated with
the treatment and any less intrusive alternative treatments. The State
would bear the burden to establish by clear and convincing evidence that
the proposed treatment meets these criteria" (<i>id.</i> at 497-498 [citations omitted]).</blockquote>
<p>While <i>Rivers</i> held that a determination should be made at a
hearing following the exhaustion of the administrative review procedures
provided for in 14 NYCRR 27.8, it further held that the review
procedures set forth in the regulation are inadequate (<i>see id.</i> at 498). With that said, <a href="https://scholar.google.com/scholar_case?case=13473724344583837187&q=wiktorko&hl=en&as_sdt=4,33&as_ylo=2023">14 NYCRR 527.8</a> was promulgated in response to <i>Rivers</i>
and sets forth the procedures to be followed prior to seeking Court
authorization for treatment over objection. As summarized in <a href="https://scholar.google.com/scholar_case?case=13473724344583837187&q=wiktorko&hl=en&as_sdt=4,33&as_ylo=2023"><i>Matter of Bronx Psychiatric Ctr.</i> (283 AD2d 73 [2001]), 14 NYCRR 527.8</a> requires as follows:</p>
<blockquote>"First, the patient's treating physician must make a
determination that the proposed treatment is in the patient's best
interests and that the patient lacks the capacity to make a reasoned
decision concerning the treatment. Once this evaluation is made, he or
she informs the Clinical Director of his [or her] determination and
requests further review. He or she is also required to notify [Mental
Hygiene Legal Service] and any other representative of the patient of
his [or her] request and determination. The clinical director then
conducts the review or. . . may appoint a designee to be a reviewing
physician. The reviewing physician personally examines the patient and
reviews his or her records. Finally, the clinical director conducts a
final review and determines whether to seek a court order" (<i>id.</i> at 75).</blockquote>
<p>Here, petitioner has followed the administrative review procedure set forth in <a href="https://scholar.google.com/scholar_case?case=13473724344583837187&q=wiktorko&hl=en&as_sdt=4,33&as_ylo=2023">14 NYCRR 527.8</a>.
Respondent was examined by Riascos on April 28, 2023, at which time he
determined that he "lacks capacity to make reasoned decision concerning
his treatment" and, further, "that it would be in the best interests of
[respondent] to be treated according to the proposed treatment outlined
in the [petition]." Gloria Thambirajah, M.D. — a consulting psychiatrist
— thereafter reviewed respondent's medical records and examined him on
May 10, 2023. Based upon her review of the records and her examination
of respondent, she reached the same conclusion as Riascos. Petitioner
requested that Mental Hygiene Legal Service (MHLS) be appointed to
represent respondent.</p>
<p>With the petitioner's expert witness present the respondent also
testified. His longwinded incoherent and nonsensical speech made clear
to the court that he is incapable of making intelligent and reasoned
decisions about his own healthcare. Dr. Riascos further testified that
this testimony was consistent with his diagnosis although the respondent
had gotten worse since his April 28, 2023 examination.</p>
<p>Petitioner has demonstrated by clear and convincing evidence that (1)
respondent is without capacity to make a treatment decision; <i>and</i> (2) that the proposed treatment is narrowly tailored to protect his liberty interest. The application is granted (<i>see e.g. </i><a href="https://scholar.google.com/scholar_case?case=12261254144930243887&q=wiktorko&hl=en&as_sdt=4,33&as_ylo=2023"><i>Matter of Sawyer [R.G.],</i> 68 AD3d 1734, 1734-1735 [2009]</a>)."</p><p>2. MATTER OF WIKTORKO, NY: Supreme Court, Washington 1/26/24, Case No. EC2023-36002:</p><p>"Presently before the Court is the application of petitioner Dustina Wiktorko, Unit Chief of the Central New York Psychiatric Center Great Meadow Correctional Facility Satellite Unit, seeking authorization to administer a medication to respondent over his objection. Respondent — who is 43 years of age — is an inmate at the Great Meadow Correctional Facility. He was convicted of kidnapping in the second degree, criminal sexual act in the first degree, and robbery in the second degree on March 9, 2010 and is currently serving a sentence of 45 years. He has been diagnosed with schizoaffective disorder, bipolar type. There have been two previous Orders granting applications to administer antipsychotic medications to respondent over his objection, which Orders covered the following time periods: (1) March 2, 2020 to March 1, 2021; and (2) October 6, 2022 to October 5, 2023.</p><p>In his supporting affirmation, sworn to September 19, 2023, respondent’s treating psychiatrist — Manuel Montes de Oca, M.D. — indicates that once the most recent Order expires, respondent will stop taking his medication. Specifically, Dr. Montes de Oca indicates that respondent stated as follows: “I am doing OK, can I come off medications…I do not need it really. I get some stiffness and shakes during the night.” In the past, respondent has decompensated rapidly after stopping his medication, with Dr. Montes de Oca recounting an incident in August 2011 when respondent attempted suicide by “stab[bing] himself in the eye with a broken mop handle.” Dr. Montes de Oca further states as follows:</p><p>“[Respondent's] previous [Order] expired in March 2021 and soon after that [he] stopped taking medications altogether. According to records…, [respondent] was presenting so psychotic that he was not taking care of his basic needs. His food intake became so poor that ‘technically he went on a Hunger Strike.’ He was exhibiting significant paranoia and bizarre behaviors, like eating food off the floor, urinating on the floor of his room, or defecating in the side room. His odor became so bad that it was deemed ‘unsuitable for a multi-patient living environment’ and [he] was restricted from peer interaction in the dayroom.”</p><p>Respondent is currently taking Haldol, but is experiencing some tardive dyskinesia — or involuntary movements — of his mouth and tongue according to Dr. Montes de Oca, who recommends that the medication be changed to Invega Sustenna in an attempt to decrease these side effects.</p><p>A hearing was held relative to this application on October 23, 2023, at which time the parties stipulated to Dr. Montes de Oca’s expertise in psychiatry and he testified as follows:</p><p>“A. The evidence seems to indicate that he has a schizoaffective disorder bipolar type. That is the diagnosis basically that is in the record.</p><p>“Q. And Doctor, with respect to that mental illness that you’ve just mentioned, what are Mr. F’s current symptoms?</p><p>“A. He, based on my last assessment, is stable psychiatrically.</p><p>“Q. And what does that mean?</p><p>“A. That he is not showing significant acute mental illness” [Hearing Transcript, at p 8].</p><p>******</p><p>“Q. Doctor, do you have an opinion, based on your care and treatment, your own evaluation and care and treatment of the patient, and your review of his progress notes and conversations that you have had with the patient, as to whether, without the medication, he would engage in conduct that is imminently likely to pose a risk of physical harm to himself or others?</p><p>“A. He could be…” [Hearing Transcript, at p 21].</p><p>******</p><p>“Q. But Mr. F is not currently showing any acute symptoms of mental illness; correct?</p><p>“A. He is not showing symptoms that prompt the need to isolate, lock him or give emergency medication to him, yes” [Hearing Transcript, at p 23]. The Court found this testimony ambiguous, at times less clear and less convincing, and unusually punctuated with an injection of hearsay from others somehow involved in respondent’s care. The following is instructive:</p><p>“Q. And Doctor, do you have an opinion to a reasonable degree of medical certainly, as to whether [respondent], without medication, would engage in conduct or is imminently likely to engage in conduct that poses a risk of physical harm to either himself or others?</p><p>“A. Well that’s precisely the letter that I got from my supervisors on top of the Office of Mental Health. Basically they telling me, when I told them, actually I told them that I don’t think it’s going to fail, COPM scrutiny in the way he is. And they send me a letter, because basically the rule is, he is doing fine, let’s leave it alone, and when he starts showing symptoms, then we say okay, now we have to do it. But they clearly shut me up by saying, and I have it here, because his previous history of dangerous behavior…” [Transcript, at pp 19-20].</p><p>The Court ordered the parties to submit the full transcript together with proposed findings of fact and conclusions of law because the treating psychiatrist described the respondent as not currently showing any acute symptoms of mental illness, that there was no prompt need “to isolate, lock him or give emergency medication to him” [Transcript, at p 23], that he is “stable psychiatrically[, and] not showing significant acute mental illness” [Transcript, at p 8].</p><p>Petitioner’s requested relief is based upon the seminal case of Rivers v. Katz (67 NY2d 485 [1986]) (hereinafter Rivers), wherein the Court of Appeals held as follows:</p><p>“[I]n situations where the State’s police power is not implicated, and the patient refuses to consent to the administration of antipsychotic drugs, there must be a judicial determination of whether the patient has the capacity to make a reasoned decision with respect to proposed treatment before the drugs may be administered pursuant to the State’s parens patriae power. The determination should be made at a hearing following exhaustion of the administrative review procedures provided for in 14 NYCRR 27.8. The hearing should be de novo, and the patient should be afforded representation by counsel. The State would bear the burden of demonstrating by clear and convincing evidence the patient’s incapacity to make a treatment decision” (id. at 497 [citation omitted]).</p><p>Despite Dr. Montes de Oca’s failure to clearly and convincingly express any substantive medical opinions, the record fortuitously manages to present reliable evidence that respondent suffers with schizoaffective disorder, bipolar type and, more to the Court’s task at hand, that he lacks the capacity to make his own treatment decisions.</p><p>This Court’s conclusion that the respondent lacks the capacity to determine the course of his own treatment answers only half the equation. Rivers also instructs that the Court must</p><p>“determine whether the proposed treatment is narrowly tailored to give substantive effect to the patient=s liberty interest, taking into consideration all relevant circumstances, including the patient=s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments. The State would bear the burden to establish by clear and convincing evidence that the proposed treatment meets these criteria” (id. at 497-498).</p><p>The Court finds petitioner has established that the proposed treatment set forth in the petition is narrowly tailored to the needs of the respondent and gives substantive effect to respondent’s liberty interests.</p><p>Dr. Montes de Oca also testified that the medication he was seeking to give respondent as set forth in the petition would be in respondent’s best interest because it would cause respondent to experience far fewer symptoms/side-effects than his current psychiatric medication. According to Dr. Montes de Oca, by switching respondent’s medication from Haldol to either Invega Sustenna or Abilify Maintena, respondent would experience less tardive dyskinesia and would also be at less risk of developing additional symptoms such as difficulty talking and swallowing. In fact, Dr. Montes de Oca testified that by taking respondent off the Haldol and switching him to either Invega Sustenna or Abilify, he would be less likely to have any side effects in general and would likely have a better quality of life overall. No evidence contradicts this evidence. The Court thus finds that the proposed treatment is in the respondent’s best interest.</p><p>Based on the evidence before the Court, I find petitioner in her capacity as Unit Chief of Central New York Psychiatric Center’s Great Meadow Satellite Unit, has met the burden of proving by clear and convincing evidence that respondent lacks the capacity to make a reasoned decision with respect to the administration of the psychotropic medications described in the petition.</p><p>I further find petitioner has demonstrated by clear and convincing evidence that the proposed treatment plan is narrowly tailored to give substantive effect to respondent’s liberty interest, considering respondent’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternatives.</p><p>Therefore, having considered NYSCEF document Nos. 1, 12, 18 through 20, and a hearing having been held on October 25, 2023 with Amanda Kuryluk, Esq. appearing on behalf of petitioner and Vinson Bovier Stevens appearing on behalf of respondent, it is hereby</p><p>ORDERED AND ADJUDGED that the medication proposed by Manuel Montes de Oca, M.D., and recited on pages 4 and 5 of his Evaluation, may be administered to respondent by the Office of Mental Health (OMH), or any medical practitioner authorized by OMH over his objections and in a manner determined by petitioner to be in his best interest, with assistance from the Department of Corrections and Community Supervision (DOCCS), if necessary, including DOCCS using only that degree of physical force that is lawful and reasonably necessary under the circumstances, during the care and treatment of respondent at any psychiatric satellite unit operated by OMH for the duration of one (1) year, unless respondent’s capacity is restored; and it is further;</p><p>ORDERED that the file in this proceeding shall be sealed by the Washington County Clerk and shall be exhibited only to the parties to this proceeding, or to other interested parties upon further Order of the Court."</p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-51035998916640659712024-01-04T06:34:00.000-05:002024-01-04T06:34:05.160-05:00FOR FREELANCERS - EFFECTIVE MAY 20, 2024<div><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/03d5/freelancer_typing_notebook_laptop.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="526" data-original-width="800" height="526" src="https://free-images.com/lg/03d5/freelancer_typing_notebook_laptop.jpg" width="800" /></a></div><br />BILL NUMBER: S5026<br />SPONSOR: GOUNARDES<br /> <br />TITLE OF BILL:<br />An act to amend the labor law, in relation to enacting the "freelance<br />isn't free act"<br /> <br />PURPOSE OR GENERAL IDEA OF BILL:<br /><br /></div><div>To provide recourse to freelance workers experiencing wage theft and<br />other violations under the Labor Law<br /> <br />SUMMARY OF PROVISIONS:<br /><br /></div><div>Section one of the bill names it the Freelance Isn't Free Act.<br /><br /></div><div>Section two of the bill adds a new section 191-d to the Labor Law. This<br />section creates provisions related to the timely payment of freelance<br />workers, a right to a written contract from a hiring party, an adminis-<br />trative process for the Department of Labor to investigate complaints,<br />the ability of DOL to sue hiring parties on wage claims at their<br />discretion, a private right action for violations of this section with<br />damages levels, a right to no retaliation, a right of action for the<br />Attorney General for a pattern or practice of violations, a public<br />awareness outreach campaign, and a reporting requirement. Much of the<br />language in this new section 191-d in the Labor Law is drawn from exist-<br />ing language in Article 6 that provides wage theft protections for<br />traditional employees, creating parity between the two different types<br />of laborers.<br /><br /></div><div>Section three of the bill provides that the provisions of this act shall<br />not be construed to override or supplant chapter 10 of title 20 of the<br />New York City Administrative Code, establishing the NYC Freelance Isn't<br />Free Law.<br /><br /></div><div>Section four of the bill sets the effective date.<br /> <br />JUSTIFICATION:<br /><br /></div><div>On May 15th, 2017, New York City's Local Law 140 of 2016 establishing<br />the Freelance Isn't Free Act took effect. This landmark law, which<br />created basic labor protections for freelance workers such as the right<br />to a written contract, timely and full payment, and protection from<br />retaliation, resulted in 1,191 cases filed with the NYC Department of<br />Consumer and Worker Protection (DCWP) in 2018 and 2019 alone, with more<br />than $1.3 million recovered in restitution and penalties. In 2020,<br />amidst the COVID lockdown, there were 490 complaints filed by freelance<br />workers, 450 for unlawful payment practices. In December of 2021, the<br />City filed its first lawsuit under the Act against L'Officiel USA, the<br />American subsidiary of a global magazine company that had demonstrated a<br />systemic pattern of failing to pay freelancers on time or at all.<br />These data points clearly demonstrate what freelancers have always known<br />to be true: that independent contractors, not protected by the same<br />minimum wage laws as regular employees and generally ineligible for<br />unemployment and workers compensation, are some of the most exposed<br />laborers in our state when it comes to wage theft. Article 6 of the<br />Labor Law, which prohibits wage theft without exception for employees<br />directly hired by an employer, does not cover freelancers such as writ-<br />ers, editors, graphic designers, videographers, consultants, temps, and<br />those who are otherwise self-employed. While New York City's Freelance<br />Isn't Free Law was a major point of progress for this vulnerable subset<br />of the labor force, NYC DCWP simply does not have the resources to prop-<br />erly handle the thousands of cases that come across their radar every<br />year. Furthermore, DCWP has no power to actually compel a hiring party<br />to pay, forcing freelance workers to resort to small claims court to<br />enforce their rights. Lastly, the city law covers only persons doing<br />business with an entity located in New York City, excluding freelancers<br />in the rest of the state.<br /><br /></div><div>This bill will replicate the labor rights of NYC's Freelance Isn't Free<br />Law in state Labor Law, adding administrative oversight and support from<br />DOL while maintaining the city's local law. It would mandate that any<br />hiring party across the state retaining a freelancer's services for at<br />least $800 provide such freelancer with a detailed written contract and<br />timely and full payment. The bill also includes an anti-retaliation<br />provision for the exercise of rights prescribed therein, and a cause of<br />action when any of the above obligations are not met. Additionally, NYS<br />DOL must provide model contracts as well as a non-judicial, administra-<br />tive process for resolving disputes between freelancers and hiring<br />parties. This bill replicates labor protections that already exist for<br />traditional employees covered under Article 6 in the Labor Law, creating<br />parity between employees hired onto a payroll and freelancers hired<br />under a time-limited contract.<br /><br /></div><div>In establishing basic protections against some of the most pernicious<br />workplace practices, the Freelance Isn't Free Act supports a key popu-<br />lation in the modern workforce that is currently unprotected by state<br />Labor Law. It is the sponsor's belief that adding enforcement for Free-<br />lance Isn't Free at the state level, which already has a Division of<br />Labor Standards that handles wage theft claims for traditional employ-<br />ees, makes good administrative sense and will reduce the need for<br />aggrieved freelancers to file a claim in civil court. All laborers in<br />our state deserve the right to fair and timely pay, regardless of the<br />nature of the work, and bills such as the Freelance Isn't Free Act will<br />play a key role in holding hiring parties accountable to ensure this<br />reality.<br /> <br />PRIOR LEGISLATIVE HISTORY:<br />2022: S8369B - Vetoed, Veto Memo no. 170<br /> <br />FISCAL IMPLICATIONS:<br />TBD<br /> <br />EFFECTIVE DATE:<br />This bill shall take effect on the one hundred eightieth day after it<br />shall have become a law.</div><p><br /></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-54465050658099500472023-12-22T09:41:00.003-05:002023-12-22T09:41:27.778-05:00NO MORE NOTARIES NEEDED FOR COURT<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/366a/stamp_rubber_stamp_stamped.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="613" data-original-width="800" height="613" src="https://free-images.com/lg/366a/stamp_rubber_stamp_stamped.jpg" width="800" /></a></div><br />This was noted by a post in November and now, as a reminder, CPLR 2106 was recently amended. The new version will go into effect on January 1, 2024 so it's time to update forms.<p></p><p><i>CPLR 2106. Affirmation of truth of statement.</i></p><p><i>The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:</i></p><p><i>I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.</i></p><p><i>(Signature)</i></p><div>At this point, I intend to use the following forms, one for myself as attorney incorporating the new language, and the others for clients and non-attorneys incorporating the new language:</div><div><br /></div><div><b>Attorney Form:</b></div><div><br /></div><div>JON M. PROBSTEIN, who is an attorney duly admitted to practice before the State of New York and the Commonwealth of Massachusetts and who is filing this document in a court of law. affirms this ___ day of _____, _____, that the following is true under the penalties of perjury (penalties may include fine or imprisonment)</div><div><br /></div><div><b>Client Form: </b></div><div><br /></div><div>XXXXX, being the plaintiff/defendant who is filing a document in this action or proceeding in a court of law, affirms this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true:</div><div><br /></div><div><div><b>Non- Attorney Form: </b></div><div><br /></div><div>XXXXX, being an individual who is filing a document in this action or proceeding in a court of law on behalf of plaintiff/defendant, affirms this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true:</div></div><div><br /></div><div><b>Venue Question:</b></div><div><br /></div><div><div>The heading in an affidavit in the state of New York typically includes the state, county, and city in which the affidavit is made...the venue usually takes the form of “State of X, County of Y”. Since the requirement for notarization of affidavits and sworn documents in civil cases in New York state courts has been removed, this is not necessary but IMHO should be used in the Client/Non-Attorney Form until this is clarified by the courts, etc..</div></div><div><br /></div><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-88087301316016446052023-12-16T16:36:00.009-05:002023-12-26T09:02:42.863-05:00IT'S A WONDERFUL LIFE AND ARCH OBOLER<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/1843/tv_sony_japanese_vintage.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="800" data-original-width="800" height="800" src="https://free-images.com/lg/1843/tv_sony_japanese_vintage.jpg" width="800" /></a></div><br />It's usually at this holiday time of year that I remember the endless showings of <i>It's A Wonderful Life </i>on all the local television stations in the mid 1970s. The story goes like this: due to a clerical error, the copyright to the film was not renewed and everyone was convinced that the film entered the public domain and TV stations everywhere could play it without having to pay anyone for the privilege. And what a joy it was to watch the film endlessly during the holiday season, because this was still at a time that Betamax/VHS was in its infancy.<p></p><p>By 1981/82, I was an entertainment lawyer, in that my clients were in the entertainment business. I was retained by a New York specialty record label Nostalgia Lane and <a href="https://en.wikipedia.org/wiki/Arch_Oboler">Arch Oboler</a>, who was the creator, writer, director of the famous 1930/40s radio series <i>Lights Out</i> on NBC. Arch actually owned and properly copyrighted the scripts and licensed its use to NBC (although he had taped copies of the broadcasts, he did not claim to own the copyright to the taped copies of the broadcasts, just the scripts). In the late 1970s, Arch licensed to Nostalgia the right to use his copyrighted scripts to market the taped copies of the broadcasts on records and tapes, etc. but another competing company was claiming the taped copies of the broadcasts were in the public domain because NBC never filed or renewed any copyrights to the broadcasts. We commenced a copyright infringement action. The Defendant argued that Arch's radio shows were in no better a position than <i>It's A Wonderful Life </i>and it sure did appear that the industry was accepting this position: if a film/TV/radio broadcast did not have a copyright, anyone can copy it and market it just like <i>It's A Wonderful Life. </i></p><p>Many times, I spoke to Arch and even visited him at his home outside Los Angeles. He was something out of old Hollywood with plays on Broadway, TV, film (the first 3D movie was by Arch). He and I would discuss his case and the dilemma of other writers like him. Arch argued that neither his radio series <i>Lights Out</i> or <i>It's A Wonderful Life </i>was in the public domain because the script is the original work and everything else derives from it (like Arch's radio shows, the film <i>It's A Wonderful Life </i>is a derivative work of the copyrighted story <u>The Greatest Gift)</u>. Whether it is a movie or a radio show or a TV show, as a derivative work, the consent of the copyright holder of the original work script is required. And although a derivative work can be separately copyrighted, if that copyright expires or is otherwise thrown into the public domain, that does not affect the copyright of the original work script. </p><p>It was a vexatious litigation and trial with the defendant raising some incredulous arguments as well as insisting on the validity of the <i>It's A Wonderful Life </i>defense; but the judge ruled that a derivative work still requires the consent of the underlying original work so that the failure to copyright or renew a derivative work will not affect the copyright of the underlying original work. The judge even awarded Arch punitive damages. The press was made aware. Anyway, as a side note: on Defendant's appeal, the Second Circuit reversed Arch on the issue of punitive damages (but on remand, he wound up with the same amount in another form). And so Arch Oboler added one last achievement to his name as he will also be remembered for one more thing - his decision is still cited to this very day for the proposition that punitive damages are presumptively not available under the Copyright Act of 1976. <a href="https://casetext.com/case/oboler-v-goldin" target="_blank"><i>Oboler v. Goldin,</i> 714 F.2d 211, 213 (2d Cir. 1983)</a> cited recently in <a href="https://scholar.google.com/scholar_case?case=16171130404275166786&hl=en&as_sdt=5,33&sciodt=3,33&as_ylo=2023"><i>Freeman v. Deebs-Elkenaney</i>, 22-CV-02435 (LLS)(SN) (S.D.N.Y. Feb. 24, 2023). </a></p><p>Oh yes, eventually the <i>It's A Wonderful Life </i>copyright mess was sort of cleared up and there are no more endless public domain showings (see <a href="https://www.thenation.com/article/culture/its-a-wonderful-life-copyright/">The Nation - Whose “It’s a Wonderful Life” Is It Anyway?</a>). On the other hand, Arch's works may now be in the public domain as he passed in 1987 and works, some of which were the subject of his litigation in 1980s, are freely available online.</p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-19216652086899290112023-12-04T08:18:00.002-05:002023-12-04T08:18:31.448-05:00BEING RELIEVED AS COUNSEL IS NOT A UNILATERAL AFFAIR<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIyLA6hQRWv2J35VfL0-DF-Q3HFczCCYR46EIWNN77YKsVrrwRQ9g-acUepj5PFB0ZIS6BQrCFBj4llHI_bZ8FSTVE3MCtCcepIjkUN1-2_nav_jlORbo8VMLX0qO5bXvjbx6qGF1_3N3Jy-_ZDmqElSXhH-EItvaYrAojwblnPVzJ0M30iGoZk1EGI7ii/s1600/lawyer%5B2%5D.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="1400" height="640" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIyLA6hQRWv2J35VfL0-DF-Q3HFczCCYR46EIWNN77YKsVrrwRQ9g-acUepj5PFB0ZIS6BQrCFBj4llHI_bZ8FSTVE3MCtCcepIjkUN1-2_nav_jlORbo8VMLX0qO5bXvjbx6qGF1_3N3Jy-_ZDmqElSXhH-EItvaYrAojwblnPVzJ0M30iGoZk1EGI7ii/w560-h640/lawyer%5B2%5D.jpg" width="560" /></a></div><br />KALAMATA CAPITAL GROUP, LLC v. AJP REMODELING, LLC, 2023 NY Slip Op 51301 - Kings Co. Supreme Court 2023:<p></p><p>"The instant action alleges causes of action premised upon a breach of a merchant cash advance contract.</p>
<p>Plaintiff Kalamata Capital Group, LLC is a corporation operating in New York (<i>see</i> NYSCEF Doc No. 30 ¶ 1). Defendants are companies organized or situated in Georgia as well as an individual (<i>see id.</i>
¶¶ 2-3). Allegedly, according to Plaintiff, Plaintiff and Company
Defendants entered into an agreement whereby Plaintiff agreed to
purchase all rights to Company Defendants' future receivables having an
agreed upon value of $78,100.00 (<i>see id.</i> ¶ 6). Individual Defendant Julio Andres Penaranda Jr. personally guaranteed the contract, per Plaintiff (<i>see id.</i> ¶ 8).</p>
<p>Defendants' attorneys, Usher Law Group P.C., answered the complaint and responded to Plaintiff's discovery demands (<i>see</i> NYSCEF Doc No. 4-6, 12-18). They now move to be relieved as counsel (<i>see</i> NYSCEF Doc No. 76).</p>
<p>Defendants' attorneys claim that "undersigned counsel was advised
that the Defendants no longer with to be represented by counsel" (NYSCEF
Doc No. 76 ¶ 10). On June 20, 2023, a letter was sent by Usher Law
Group P.C. to Defendants, purporting to confirm that in accordance with
the latter's request, the firm would no longer be representing them, and
"In order for this firm to be relieved as counsel for you[r] matter,
please sign the attached affidavit and return it to us as soon as
possible in the postage paid envelope enclosed" (NYSCEF Doc No. 78 at
2).</p>
<p>During oral argument the Court asked appearing counsel if he wished
to provide an in-camera disclosure as to why counsel of record sought to
be relieved. Appearing counsel declined the offer and provided no
additional information.</p>
<p></p><h2><i>II. Movant's Arguments</i></h2><p></p>
<p>Movant law firm Usher Law Group cites case law for the proposition
that "New York Courts have long held that an attorney mad [sic] end the
relationship with a client at any time for good cause and on reasonable
notice to the client. (See <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=8881024928983306862&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>In re Dunn,</i> 205 N.Y 398, 403 (1912)</a>"
(NYSCEF Doc No. 76 ¶ 12). Movant cites a provision of the New York
Rules of Professional Conduct, "1.16 (b)(6)," that does not exist (<i>see id.</i>
¶ 13). This asserted provision purportedly "states that a lawyer may
withdraw from representing a client if the representation will result in
an unreasonable financial burden on the lawyer or has been rendered
unreasonably difficult by the client or; (7) other good cause for
withdrawal exists so long as it can be accomplished without material
adverse effects on the interest of the client" (<i>id.</i>).</p>
<p></p><h2><i>III. Discussion</i></h2><p></p>
<p>Here, the Defendants' counsel seeks to be relieved. No opposition to
Defendants' attorneys' motion has been filed. No appearance has been
made in opposition.</p>
<p>In 1912, the Court of Appeals established that an attorney may
terminate his relationship with a client in litigation "at any time for a
good and sufficient cause and upon reasonable notice" (<a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=8881024928983306862&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Matter of Dunn [Brackett],</i> 205 NY 398, 403 [1912]</a>).</p>
<p>"As a general rule, an attorney may obtain leave of court to
terminate the attorney-client relationship at any time upon reasonable
notice, for a good and sufficient cause, including the client's failure
to pay legal fees and the failure to cooperate in his or her
representation so as to cause a breakdown in that relationship (<i>see</i> 22 NYCRR 1200.0, Rule 1.16 [c]; <a href="https://scholar.google.com/scholar_case?case=15783784124846840594&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Misek-Falkoff v Metro. Tr. Auth.,</i> 65 AD3d 576, 577</a> [2d Dept 2009]; <a href="https://scholar.google.com/scholar_case?case=10759384045914425279&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Rivarderneria v New York City Health and Hosps. Corp.,</i> 306 AD2d 394, 395</a> [2d Dept 2003]; <a href="https://scholar.google.com/scholar_case?case=18291003494652658415&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Tartaglione v Tiffany,</i> 280 AD2d 543, 543</a> [2d Dept 2001]; <a href="https://scholar.google.com/scholar_case?case=13094627038977346749&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Adler v Mitchell,</i> 2022 NY Slip Op 50665</a>[U], *2, 2022 NY Misc LEXIS 3194, *3 [Sup Ct, NY County, Jul. 25, 2022])" (<i>Ventura v Choi,</i>
2023 WL 4290358, *1 [Sup Ct, NY County, June 29, 2023, No.
805374/2016].) However, an attorney's right to withdraw as counsel is
not absolute, and a sound reason must be provided why counsel should be
allowed to withdraw (<i>see Matter of Jamieko A.,</i> 193 AD2d 409 [1st Dept 1993]).</p>
<p>Conduct on the part of the clients rendering it unreasonably
difficult to carry out the employment effectively is a valid ground for
terminating the attorney-client relationship (<i>see </i><a href="https://scholar.google.com/scholar_case?case=6281378958655031745&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Rann v Lerner,</i> 160 AD2d 922</a> [2d Dept 1990]). However, not every dispute between a client and an attorney warrants withdrawal (<i>see </i><a href="https://scholar.google.com/scholar_case?case=12077390910074923813&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Willis v Holder,</i> 43 AD3d 1441</a> [4th Dept 2007]; <a href="https://scholar.google.com/scholar_case?case=14178161892218275467&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>LeMin v Central Suffolk Hosp.,</i> 169 AD2d 821</a> [2d Dept 1991].</p>
<p>The courts have an "inherent and statutory power to regulate the practice of law" (<i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=16045930594867801151&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>First Natl. Bank of E. Islip v Brower,</i> 42 NY2d 471, 474 [1977]</a>),
and that power includes the authority to deny a motion to withdraw
"because of the attorney's failure to show good and sufficient cause
warranting withdrawal under the Code of Professional Responsibility"<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=12695853930710252172&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023#[1]" name="r[1]">[1]</a></sup> (<a href="https://scholar.google.com/scholar_case?case=2392449082629964983&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>J.M. Heinike Assoc. v Liberty Natl. Bank,</i> 142 AD2d 929, 930</a> [4th Dept 1988]; <i>accord </i><a href="https://scholar.google.com/scholar_case?case=12077390910074923813&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Willis v Holder,</i> 43 AD3d 1441</a> [4th Dept 2007]).</p>
<p>After an attorney has withdrawn it would be foolhardy to believe that
the Defendant will easily be able to obtain a new attorney as "whatever
the basis of permitted withdrawal, and certainly where it is based on
insufficient merit of the claim or defense, prospective new counsel
will, understandably, be reluctant to accept the representation" (<a href="https://scholar.google.com/scholar_case?case=6365061653429555807&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Diaz v New York Comprehensive Cardiology, PLLC,</i> 43 Misc 3d 759, 764</a> [Sup Ct, Kings County 2014]).</p>
<p>"The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (<a href="https://scholar.google.com/scholar_case?case=10467463798727968461&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>McDonald v Shore,</i> 100 AD3d 602, 603</a> [2d Dept 2012] [internal quotation marks and citations omitted]).</p>
<p>Moving counsel cites a nonexistent provision of the Rules of
Professional Conduct. There is no paragraph (6) of subdivision (b) of
Rule 1.16, as cited to by counsel. Rule 1.16 enumerates circumstances
under which an attorney may ethically withdraw from representing a
client. Subdivision (b) of Rule 1.16 provides:</p>
<blockquote>(b) Except as stated in paragraph (d), a lawyer <i>shall</i> withdraw from the representation of a client when:</blockquote>
<blockquote>(1) the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law;</blockquote>
<blockquote>(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;</blockquote>
<blockquote>(3) the lawyer is discharged; or</blockquote>
<blockquote>(4) the lawyer knows or reasonably should know that the
client is bringing the legal action, conducting the defense, or
asserting a position in the matter, or is otherwise having steps taken,
merely for the purpose of harassing or maliciously injuring any person.</blockquote>
<p>(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].)</p>
<p>Permissive withdrawal is governed by subdivision (c) of Rule 1.16:</p>
<blockquote>(c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when:</blockquote>
<blockquote>(1) withdrawal can be accomplished without material adverse effect on the interests of the client;</blockquote>
<blockquote>(2) the client persists in a course of action involving the
lawyer's services that the lawyer reasonably believes is criminal or
fraudulent;</blockquote>
<blockquote>(3) the client has used the lawyer's services to perpetrate a crime or fraud;</blockquote>
<blockquote>(4) the client insists upon taking action with which the lawyer has a fundamental disagreement;</blockquote>
<blockquote>(5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees;</blockquote>
<blockquote>(6) the client insists upon presenting a claim or defense
that is not warranted under existing law and cannot be supported by good
faith argument for an extension, modification, or reversal of existing
law;</blockquote>
<blockquote>(7) the client fails to cooperate in the representation or
otherwise renders the representation unreasonably difficult for the
lawyer to carry out employment effectively;</blockquote>
<blockquote>(8) the lawyer's inability to work with co-counsel indicates
that the best interest of the client likely will be served by
withdrawal;</blockquote>
<blockquote>(9) the lawyer's mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;</blockquote>
<blockquote>(10) the client knowingly and freely assents to termination of the employment;</blockquote>
<blockquote>(11) withdrawal is permitted under Rule 1.13(c) or other law;</blockquote>
<blockquote>(12) the lawyer believes in good faith, in a matter pending
before a tribunal, that the tribunal will find the existence of other
good cause for withdrawal; or</blockquote>
<blockquote>(13) the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.</blockquote>
<p>(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].) No paragraph in
subdivision (c) of Rule 1.16 was referenced by moving counsel.</p>
<p>In addition to the Rules of Professional Conduct, CPLR 321 (b) (2)
states, "An attorney of record may withdraw or be changed by order of
the court in which the action is pending, upon motion on such notice to
the client of the withdrawing attorney, to the attorneys of all other
parties in the action or, if a party appears without an attorney, to the
party, and to any other person, as the court may direct."</p>
<p>Furthermore, when an attorney seeks to be relieved of counsel, moving
papers must contain specific allegations in order to be relieved as
counsel; conclusory statements are not sufficient (<i>see </i><a href="https://scholar.google.com/scholar_case?case=8804523741590530853&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Kramer v Salvati,</i> 88 AD2d 583</a> [2d Dept 1982]). In <i>Kramer,</i>
the Appellate Division found that the moving papers of plaintiffs'
attorneys seeking to be relived of their responsibilities based their
application on "various differences," but there was "no specification
whatsoever of this conclusory assertion" (<i>id.</i> at 583). Supreme Court's denial of the attorneys' motion was sustained.</p>
<p>It must be emphasized that when an attorney undertakes to represent a
defendant in a civil action, there exists a presumption that the
representation will continue in good faith throughout the course of the
litigation (<i>see </i><a href="https://scholar.google.com/scholar_case?case=16534756642014980562&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Moustakos v Bouloukos,</i> 112 AD2d 981</a> [2d Dept 1985]; <a href="https://scholar.google.com/scholar_case?case=1006011640377040779&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Blondell v Malone,</i> 91 AD2d 1201</a>
[4th Dept 1983]). An attorney cannot unilaterally terminate a
relationship with clients simply by failing to perform services
expressly or impliedly authorized by them (<i>see </i><a href="https://scholar.google.com/scholar_case?case=10839440837322449292&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>Leffler v Mills,</i> 285 AD2d 774</a>
[3d Dept 2011]). One should not enter into a client representation with
the aforethought that the attorney can earn a quick fee and then let
the client loose. "As the saying goes, `in for a penny, in for a pound'
(Edward Ravenscroft, The Canterbury Guests; Or, A Bargain Broken, act v,
scene 1 [1695])" (<a href="https://scholar.google.com/scholar_case?case=5636203585835690311&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023"><i>People v Graves,</i> 163 AD3d 16, 22</a> [4th Dept 2018]).</p>
<p>Here, Defendants' counsel's only explanation for being discharged was
a conclusory one-sentence statement: "In June of 2023 undersigned
counsel was advised that the Defendants no longer with [sic] to be
represented by counsel and forwarded a letter confirming the same." The
sentence appears to convey that the Defendants forwarded a letter
confirming a desire not to be represented by counsel. Actually, counsel
prepared an affidavit for the individual Defendant to sign both on his
own behalf and on behalf of Company Defendants. The affidavit was sent
along with a cover letter. The affidavit was never signed and returned
by the individual Defendant. (<i>See</i> NYSCEF Doc No. 78.)</p>
<p>Since no details were provided by counsel, this Court is left in the
dark as to why the breakdown in the attorney-client relationship
occurred, whether Defendants truly wished to have counsel relieved, and
whether they understood the consequences of being without an attorney.
One would presume that if they wished counsel to no longer represent
them, they would have signed the affidavit and returned it. At a
minimum, they would have sent something in writing acknowledging their
intentions. However, there is nothing from them.</p>
<p>This does not mean that as a sine qua non a client must execute a
writing to memorialize a desire to have counsel relieved as their
attorneys. But when counsel offers nothing more than an enigmatic
one-line statement without details and without an offer to explain the
situation in camera, and despite having the opportunity to sign
something to the effect that they don't want the attorneys representing
them, the clients do not return it executed, this raises a question on
the Court's part as to what has transpired. This Court cannot acquiesce
so easily to rendering parties to litigation, especially Defendants in a
breach of contract case, without legal representation.</p>
<p>Relieving oneself of counsel is not a unilateral affair. Counsel must
show good cause to be relieved. Here, Defendants' counsel has not
demonstrated good and sufficient cause with sufficient allegations.
Present are none of the above cited reasons for permitting dissolution
of the attorney-client relationship — such as a failure to pay legal
fees, a failure to cooperate, client actions rendering it difficult to
carry out the representation, lack of a meritorious defense, illegal
conduct taking place, or the client proposes to undertake illegal
conduct. The present circumstances, including the lack of an in-camera
explanation and the non-return by Defendants of the pre-written
affirmation, prompt this Court to decline to exercise its discretion to
relieve counsel from representation.</p>
<p></p><h2><i>IV. Conclusion</i></h2><p></p>
<p>Accordingly, it is hereby ORDERED that Defendants' counsel's motion to be relieved is DENIED.</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=12695853930710252172&q=kalamata&hl=en&as_sdt=4,33&as_ylo=2023#r[1]" name="[1]">[1]</a> The Code of Professional Responsibility was replaced by the Rules of Professional Conduct in 2009."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-42485167471935190682023-11-27T07:18:00.001-05:002023-11-27T07:18:05.173-05:00WHEN A TEENAGER HAS A PREFERENCE FOR A GUARDIAN OTHER THAN A PARENT<p></p><div class="separator" style="clear: both; text-align: center;"><div class="separator" style="clear: both; text-align: center;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim2kCDQejcwnB7wR7J1AHQSNRDuhbCOAe-DuCgyoZjjidrTCE5NUNHZ5UVX6Hy2JGJMLjTSirMkO5nxbOeZiwV4K1e0WgOZ63eWmNm2RkjNxfpV1ZLLJlaJwBSOM_uZTCKbDBEd8mBCGcnlQ0CwmfjHUN9iWFDTmeJqBGlG24_0aB5rbkqInt9YFm3jabS/s762/JMPLAW3.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="458" data-original-width="762" height="384" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim2kCDQejcwnB7wR7J1AHQSNRDuhbCOAe-DuCgyoZjjidrTCE5NUNHZ5UVX6Hy2JGJMLjTSirMkO5nxbOeZiwV4K1e0WgOZ63eWmNm2RkjNxfpV1ZLLJlaJwBSOM_uZTCKbDBEd8mBCGcnlQ0CwmfjHUN9iWFDTmeJqBGlG24_0aB5rbkqInt9YFm3jabS/w640-h384/JMPLAW3.png" width="640" /></a></div></div></div><p><br />A child’s custody preference for a guardian, while entitled to weight, is not determinative.</p><p>GUARDIANSHIP OF RAYA, No. 22-P-1100, Appeals Court of Massachusetts, Hampshire (2023):</p><p>"HODGENS, J.</p>
<p>Weeks after entering an order appointing the child's maternal
grandmother and uncle as her temporary guardians, a judge of the Probate
and Family Court found that there was "insufficient evidence" that the
mother was "presently unfit." The judge ordered prompt reunification
with the mother but offered a "period of transition" if the child
"refuse[d] to return to her mother's home." Months later, with the child
balking at reunification and the transition not going well, the judge
reinstated the temporary guardianship. Almost two years after the
original temporary guardianship, the child turned fourteen years old and
nominated her maternal grandmother and uncle as guardians. Following a
trial, the judge appointed the grandmother and uncle as coguardians
after concluding that the mother was unfit due to the child's
unwillingness to be parented by the mother and the mother's inability to
remedy the near total breakdown in the parent-child relationship. We
reverse the guardianship decree.</p>
<p>Background. This matter came before the Probate and Family Court
through a petition and verified motion filed by the child's grandmother
and uncle on April 3, 2020, seeking appointment as guardians and
alleging emergency circumstances. On the same day, a judge allowed the
petition and verified motion, appointed the grandmother and uncle as
temporary guardians, and noted the exigent nature of the guardianship
order: "The Petitioners are concerned about the Mother's ability to
protect the child from exposure to Covid-19, a significant history of
domestic violence, and an inability to maintain a hygienic living
environment for the child as well as the child's expressed fear and
refusal to live with the Mother." The judge scheduled a hearing on June
1, 2020, and set June 3 as the expiration date for the temporary
guardianship. In the interim, the judge appointed counsel for the mother
and the child.</p>
<p>Following the hearing on June 1, the judge declined to extend the
temporary guardianship: "After hearing, the Court finds that there is
insufficient evidence that [the mother] is presently unfit to parent
[the child]." The judge ordered the mother to submit to a "psychological
and substance use disorder evaluation." The judge authorized a "period
of transition" if the child "refuses to return to her mother's home upon
the expiration of the temporary guardianship on June 3." The period of
transition would allow for "several weeks in which [the child] spends
part of each day with her mother, returning to sleep at her
grandmother's home at night." The judge also ordered all parties to
participate in family therapy during the transition period.</p>
<p>Four months later, after a hearing in October 2020, the judge allowed
the grandmother and uncle's petition to reinstate the temporary
guardianship. According to the judge, the transition period had "not
gone well," especially after the child objected to the mother's efforts
to integrate the mother's current boyfriend and the boyfriend's children
"into the picture." The judge expressed particular concern about the
mother's decision to go on vacation in Delaware with the boyfriend and
his children, while the child refused to accompany her. As the judge put
it, "This caused a rupture in their reunification of three weeks, first
because of the vacation and then due to the [fourteen] day quarantine
period necessitated by a trip to a state that is not on Massachusetts'
acceptable location list." The judge concluded that she had "no choice"
but to allow the petition because the child "is living full-time with
her maternal grandmother, and reunification is stalled." Again
attempting to advance reunification, the judge ordered parenting time on
a "progressive schedule" that would culminate with the child living
with her mother by December 1.</p>
<p>Over the next eighteen months, the temporary guardianship was
reviewed and extended six times. In December 2020, the judge concluded
that "re-unification is not progressing as had been hoped" and
established a reduced schedule of parenting time to enable the child to
split her time between living with her mother and her grandmother. By
June 2021, the judge noted, "The goal is [to resume] the parenting
schedule set forth in the December 14, 2020 Temporary Order, but given
[the child's] reticence, this schedule shall not resume immediately." By
October 2021, the child refused to spend any time with her mother. The
child also refused to participate in any meaningful way in reunification
family therapy. The mother continued to invite the child to various
activities, sent text messages to her daily, and expressed a willingness
to do any activity chosen by the child. The mother also submitted to a
psychological evaluation.</p>
<p>On April 27, 2022, the first day of a two-day trial began regarding
the guardianship petition. Days later, on May 4, 2022, the child, having
reached the age of fourteen, filed a court form entitled "Notarized and
Verified Consent or Nomination by Minor." By filing the form and
reaching the requisite age of fourteen, the child nominated her maternal
grandmother and uncle as guardians pursuant to G. L. c. 190B, §
5-207(a). The trial concluded on May 17, 2022.</p>
<p>The judge issued findings and rulings on July 15, 2022, and noted the
absence of any abuse or neglect as well as the absence of any substance
use disorder or mental health concern that would prevent the mother
from parenting. The judge concluded the mother was unfit because of her
inability to remedy the near total breakdown in the parent-child
relationship.</p>
<p>Discussion. A court may appoint a guardian for a minor if, among
other reasons, "the court finds the parents, jointly, or the surviving
parent, to be unavailable or unfit to have custody." G. L. c. 190B, §
5-204(a)(v). "Parental unfitness must be determined by taking into
consideration a parent's character, temperament, conduct, and capacity
to provide for the child in the same context with the child's particular
needs, affections, and age." <a href="https://scholar.google.com/scholar_case?case=15307890291532034098&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Adoption of Mary, 414 Mass. 705, 711 (1993)</a>. Unfitness contemplates "grievous shortcomings" that would put the child's welfare "much at hazard." <a href="https://scholar.google.com/scholar_case?case=2996401486304632516&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975)</a>.
The party seeking the guardianship, here the child's grandmother and
uncle, had the burden of proving by clear and convincing evidence that
the mother was unfit. See <a href="https://scholar.google.com/scholar_case?case=17039800922482927572&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Guardianship of Kelvin, 94 Mass. App. Ct. 448, 456 (2018)</a>.
After reviewing the record, we conclude that the child's grandmother
and uncle did not meet their burden and reverse the guardianship decree.</p>
<p>The record lacks any suggestion of unfitness based upon the character, temperament, or conduct of the mother. Cf. <a href="https://scholar.google.com/scholar_case?case=15307890291532034098&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Adoption of Mary, 414 Mass. at 711</a>.
The mother is a single parent, with some college-level education, and
works about fifty hours per week. The mother maintains a "spacious"
studio apartment with "room dividers" and plenty of room for her
daughter. Throughout the court proceedings, the mother participated in
parenting time, family counseling, and a psychological evaluation.
Indeed, the judge noted the absence of any instances of abuse or neglect
by the mother, and she also noted the absence of any substance use
disorder or mental health concern that would prevent the mother from
parenting. The judge focused instead on the mother's inability to remedy
the breakdown in the parent-child relationship and her limited insight
into the child's feelings. We conclude that the mother's lack of success
at reconciliation does not demonstrate the requisite "high degree of
probability" demanded by clear and convincing evidence that the mother
is an unfit parent. Cf. <a href="https://scholar.google.com/scholar_case?case=9555313749099725826&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997),</a> S.C., 427 Mass. 582 (1998), quoting <a href="https://scholar.google.com/scholar_case?case=3171036679702862237&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Tosti v. Ayik, 394 Mass. 482, 493 n.9 (1985),</a> cert. denied, <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=7875355687029407714&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">484 U.S. 964 (1987)</a>.</p>
<p>"Unfitness is a concept which cannot be applied in the abstract but
requires careful consideration, on the facts of a given case, of the
capacity of parents to care for their children." <a href="https://scholar.google.com/scholar_case?case=1874442968016402362&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 125 (1984)</a>.
The child contends that parental unfitness may be found "[w]hen
children refuse to return home and when parents cannot parent due to an
impasse in the parent-child relationship." We disagree. Unfitness may be
established by considering the specialized needs of a child "when
combined with the deficiencies of a parent's character, temperament,
capacity, or conduct." <a href="https://scholar.google.com/scholar_case?case=1874442968016402362&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, supra</a>.
Although the child expressed a preference for her grandmother and
uncle, the present case lacked the requisite parental deficiencies that
would warrant a finding of unfitness. For example, this is not a case
where the mother was intransigent and made no effort at reestablishing a
relationship. See <a href="https://scholar.google.com/scholar_case?case=10281013839163221807&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Custody of a Minor, 383 Mass. 595, 601 (1981)</a>
(unfitness where child refused to return home and mother "consistently
and persistently refused to take steps" to address psychological rift
with child). Nor is this a case where the mother suffered from any
mental illness or substance use issue that would impair her ability to
parent. See <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=70556676963612773&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Adoption of Arthur, 34 Mass. App. Ct. 914, 914 n.2 (1993)</a>
(unfitness where child expressed desire to be adopted and mother "beset
with a substantial mental illness and emotional instability exacerbated
by alcoholism"). This is also not a case where the mother put the child
at risk of harm. See <a href="https://scholar.google.com/scholar_case?case=4126565616383683991&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Adoption of Daisy, 77 Mass. App. Ct. 768, 783 (2010),</a>
S.C., 460 Mass. 72 (2011) (unfitness where child unwilling to have
contact with mother who disbelieved child's claim that her father
sexually abused her, and that disbelief "made it unsafe" to return to
mother's care due to the risk of further sexual abuse and psychological
harm).</p>
<p>We reject the child's contention that her "refusal to be parented" by
the mother was a "symptom" and "obvious manifestation" of the mother's
unfitness. Our jurisprudence squarely rejects equating a child's custody
preference — no matter how stubbornly expressed — with unfitness. While
"entitled to weight" in the analysis, the child's preference is "not
determinative." <a href="https://scholar.google.com/scholar_case?case=11950509567891341378&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Care & Protection of Georgette, 439 Mass. 28, 36 (2003)</a>.
The child's preference for her grandmother and uncle did not prove the
mother had "grievous shortcomings" that would put the child's welfare
"much at hazard." <a href="https://scholar.google.com/scholar_case?case=2996401486304632516&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 646</a>.
Although a judge must carefully consider that preference, a teenager
cannot render her parent unfit by the simple expedient of refusing to
engage with that parent.</p>
<p>The child's nomination of her grandmother and uncle as guardians is
also not determinative. Pursuant to G. L. c. 190B, § 5-207(a), "The
court shall appoint a person nominated by the minor, if the minor is
[fourteen] or more years of age, unless the court finds the appointment
contrary to the best interest of the minor." Before displacing a
parent's rights and responsibilities and appointing a guardian for a
minor in the circumstances presented here, a court must first find the
parent "to be unavailable or unfit to have custody." G. L. c. 190B, §
5-204(a)(v). See <a href="https://scholar.google.com/scholar_case?case=17039800922482927572&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453 (2018),</a> quoting <a href="https://scholar.google.com/scholar_case?case=8988100818551776092&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Matter of Hilary, 450 Mass. 491, 496 (2008)</a>
("It is well established that `parents have a fundamental liberty
interest in the care, custody, and management of their children'"). The
judge properly considered the nomination as further evidence of the
child's strong preference but did not suggest, nor do we, that the
nomination dispensed with the judicial obligation to assess parental
fitness.</p>
<p>We also reject the child's alternative argument that a
"constellation" of other factors supports a conclusion of unfitness.
According to the judge's findings, for the first four years of the
child's life (2008-2012), the mother and child lived with the
grandmother. The mother and grandmother worked cooperatively to raise
the child, whose father was not involved in the child's life and had
left the country before she was born. Soon after the mother and the
child obtained their own apartment, the child "struggled to regulate her
emotions" and experienced tantrums. The grandmother continued to assist
in caring for the child, and the uncle provided some support. In 2018,
the mother and child moved in with the mother's erstwhile boyfriend. On
one occasion while the child, the mother, and that boyfriend were away
on vacation, the grandmother found the apartment in a state of "total
chaos" with neglected guinea pigs, items broken or soaked in wine, and
five large containers of vodka. At some point, the mother and the
boyfriend became engaged, but the relationship turned unhealthy and
ended following domestic abuse witnessed by the child. The child
returned to live with the grandmother, and the mother followed months
later. After about six months, the mother secured another apartment, but
the child refused to move in with her because of the prospect of
sharing the apartment with two male housemates she did not know. The
uncle decided to file the guardianship petition because he believed the
mother's insistence on the child moving into the apartment was
"upsetting to the child."</p>
<p>These findings show the judge's diligence in examining the background
of the parties' evolving relationships over the course of more than a
decade, but they do not speak to "current data" or even "prognostic
evidence" that would bear on the mother's fitness at the time of the
trial. <a href="https://scholar.google.com/scholar_case?case=1874442968016402362&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Petitions of Dep't of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. at 126</a>.
"[I]solated problems in the past or stale information cannot be a basis
for a determination of current parental unfitness." Id. Although the
child witnessed the incident of domestic violence perpetrated by the
former boyfriend, the judge concluded that the mother "made the
appropriate decision to end the relationship and immediately sought an
abuse prevention order." We also note that the child's concern about
potential "male housemates" was no longer an issue at the time of trial
because the mother moved into a new apartment where she lives alone.
Even if reflecting some unspecified deficiencies on the part of the
mother at the time of the trial, this background does not constitute
"full, clear and decisive" proof of unfitness as required by the
standard of clear and convincing evidence. <a href="https://scholar.google.com/scholar_case?case=9555313749099725826&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Adoption of Iris, 43 Mass. App. Ct. at 105,</a> quoting <a href="https://scholar.google.com/scholar_case?case=3543004441848728098&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977)</a>.</p>
<p>Conclusion. While "much must be left to the trial judge's experience and judgment" in these matters, <a href="https://scholar.google.com/scholar_case?case=2996401486304632516&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 646,</a>
"State intervention in the parent-child relationship" may be justified
only when courts apply governing legal standards with the utmost
circumspection. <a href="https://scholar.google.com/scholar_case?case=17725153366344631369&q=Guardianship+of+Raya&hl=en&as_sdt=4,22">Custody of a Minor, 377 Mass. 876, 882 (1979)</a>.
The guardianship petition here lacked the required proof, by clear and
convincing evidence, that the mother was "unfit." G. L. c. 190B, §
5-204. Therefore, the decree appointing the child's grandmother and
uncle as coguardians is reversed."</p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-62752480008119544282023-11-15T07:53:00.000-05:002023-11-15T07:53:04.087-05:00CAN ADOPTEE INHERIT FROM BIOLOGICAL PARENT INTESTATE ESTATE?<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/40c2/family_leisure_parents_child.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="590" data-original-width="800" height="590" src="https://free-images.com/lg/40c2/family_leisure_parents_child.jpg" width="800" /></a></div><br />MATTER OF OSTAPENKO, 2023 NY Slip Op 23349 - NY: Surrogate's Court, Kings 2023:<p></p><p>"The question before the court is whether the adoption of the
Petitioner by her stepfather prohibits the Petitioner from inheriting
from her birth father, the Decedent, as an "adopted-out" child. The EPTL
states that an adopted child's right to intestate distribution is
governed by the domestic relations law ("DRL"). <i>See</i> EPTL
§4-1.1(d). Under most circumstances, "[t]he rights of an adoptive child
to inheritance from and through his birth parents shall terminate upon
the making of the order of adoption." DRL §117(1)(b).</p>
<p>The legislature has created exceptions to the general rule, which
would apply to the herein case. In 1987, the statutory exception was
expanded for adopted children to "inherit from and through their natural
parents as to estates of persons dying after August 31, 1987, provided
that the decedent is the adoptive child's natural grandparent or is a
descendant of such grandparent and that an adoptive parent is married to
the child's natural parent or is the child's natural grandparent." <a href="https://scholar.google.com/scholar_case?case=3204610762008329322&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023"><i>In re Estate of Morrow,</i> 187 Misc 2d 742, 744, (Sur Ct, Bronx County 2001),</a> <i>See</i> DRL § 117(1)(e); <a href="https://scholar.google.com/scholar_case?case=10836869230713663920&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023"><i>Matter of Seaman,</i> 78 NY2d 451 (1991)</a>.</p>
<p><a href="https://scholar.google.com/scholar_case?case=2076925036287343130&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023">In <i>Matter of Johnson,</i> 18 Misc 3d 898, 901, (Sur Ct, Kings County 2008),</a>
the Court made the following observations about the legislative intent
for the expanded exception for adopted children to inherit from their
birth parents as codified in DRL §117(1)(e):<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=16157737610934798462&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023#[3]" name="r[3]">[3]</a></sup></p>
<blockquote>The Recommendation of the 1987 Law Revision Commission to
the 1987 Legislature indicates the intent of the amendment to Domestic
Relations Law § 117 was to advance a fundamental policy underlying the
laws governing intestate distribution. McKinney's Session Laws of NY
1942. In sum, the laws of intestacy attempt to distribute the decedent's
property to persons whom the decedent would likely have chosen had he
or she executed a will. See <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16305052624887734475&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023">Matter of Shupack, 158 Misc. 873, 877, 287 N.Y.S. 184 (Sur Ct, Kings County 1936)</a>.</blockquote>
<blockquote>Accordingly, in cases where a child is adopted by a close
family member, "[t]he Legislature has chosen not to cut off inheritance
ties between the adopted-out child and the natural family that has been
replaced because of the likelihood of continued contact with that
family." <a href="https://scholar.google.com/scholar_case?case=10836869230713663920&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023">Matter of Seaman, 78 NY2d 451, 461 (1991)</a>
(emphasis added). Because there is a likelihood of contact with
biological parents in intrafamily adoptions, the policy concerns of
severing adoptees from their biological parents and securing them in new
families are not implicated. See <a href="https://scholar.google.com/scholar_case?case=4652356795081653903&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023">Matter of Best, 66 NY2d 151, 155 n. 1 (1985)</a>.</blockquote>
<p>Based on the evidence presented at the kinship hearing, the two-prong
exception under DRL §117(1)(e) is satisfied in this proceeding. The
Petitioner, as the adopted-out child, inherits through the Decedent, her
birth father, because the Decedent is a descendant (son) of the
adoptive child's birth grandparents (Halyna and Hryhorij), and the
Petitioner was adopted by her stepfather.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=16157737610934798462&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023#[4]" name="r[4]">[4]</a></sup>"
In a stepparent adoption, the adoptive child inherits from and through
both biological parents, including the biological parent that has not
married the stepparent or consented to the stepparent adoption." <a href="https://scholar.google.com/scholar_case?case=3204610762008329322&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023"><i>In re Estate of Morrow,</i> 187 Misc 2d 742,</a> 744 <i>citing </i><a href="https://scholar.google.com/scholar_case?case=10836869230713663920&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023"><i>Matter of Seaman,</i> 78 NY2d 45 (1991)</a>.
Thus, Petitioner's right to inherit from or through either birth parent
did not terminate upon her adoption. The testimony of the witnesses and
the evidentiary submissions have established that the Decedent died
without a spouse and is survived by one child, the Petitioner, as the
Decedent's sole distributee. Therefore, the net estate shall be
distributed to Vanessa Wojtowicz, the Petitioner, pursuant to the
provisions of EPTL §4-1.2(a)(2)(B) and EPTL §4-1.2(a)(2)(C).</p>
<p>Petitioner, Vanessa Wojtowicz, appears to be competent to act as
administrator of the estate and has offered proof sufficient to
establish her superior entitlement to letters of administration over the
P.A. <i>See</i> SCPA §1001(1)(b). Accordingly, letters of
administration shall issue to Vanessa Wojtowicz, without bond, upon duly
qualifying under law, and the temporary letters of administration
issued to the P.A. are hereby revoked. Petitioner's Revocation
Proceeding under File No. 2016-4367/A&B is dismissed, without
prejudice, since the herein decision renders it moot.</p>
<p>The P.A. shall turnover to Petitioner all property belonging to the
estate in his possession and control, within sixty (60) days of service
of a certified copy of this order, if any estate assets have been
collected.</p>
<p>Armena Gayle, Esq., counsel to the Kings County Public Administrator, waives an award for legal services.</p>
<p>Decree signed.</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=16157737610934798462&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023#r[1]" name="[1]">[1]</a> See Surrogate Diana Johnson's Decision dated November 14, 2016.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=16157737610934798462&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023#r[2]" name="[2]">[2]</a> The instrument acknowledging parentage dated March 31, 1983 was entered into the kinship hearing as Exhibit A-10.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=16157737610934798462&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023#r[3]" name="[3]">[3]</a>
A 2002 amendment to DRL § 117 substituted the word "birth" for the
term "natural" throughout the statute. (L 2002, ch 312, § 4.)</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=16157737610934798462&q=ostapenko&hl=en&as_sdt=4,33&as_ylo=2023#r[4]" name="[4]">[4]</a>
Petitioner entered into evidence as Exhibit A-13 certified copies of
her adoption, which states that Richard Wojtowicz was the spouse of
Petitioner's mother, Dorothy."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-25939781467860746852023-11-13T07:02:00.000-05:002023-11-13T07:02:31.820-05:00NEW YORK ONLINE REGISTRATION<p> </p><p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";"><img alt="New York State Unified Court System: Attorney Online Services - Attorney Registration" border="0" id="_x0000_i1025" src="https://iapps.courts.state.ny.us/aronline/images/aronline_banner.jpg" /><o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">Dear Colleagues, <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">On December 1, 2023, all New York
attorneys will be required to register and renew their registration using our
online system. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">In conjunction with the new online
filing mandate, attorneys will be required to establish an Online Services
Account to log in to the <a href="https://iapps.courts.state.ny.us/aronline/SignIn">electronic registration
system.</a> The system allows access to maintain current contact information,
pay the biennial fee (if required), report CLE compliance, and affirm other
certifications required by court rules. The Online Service account credential
also permits attorneys to securely log in to other UCS systems such as NYSCEF,
eTrack, and other portals used for eFiling and case management. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">With over 80% of New York attorneys
already filing their registration online and an even larger percentage having
established their Online Services account, the Administrative Board of the
Courts amended <a href="https://ww2.nycourts.gov/rules/chiefadmin/118.shtml">Part118.1</a>
and 118.3 of the Rules of the Chief Administrative Judge to require all
attorneys licensed in New York to register online. Paper registration forms
will no longer be issued from December 1, 2023 and onwards. Mandatory online
registration reduces paper waste and improves the accuracy of data collection.
This change will continue to make the obligation to register more effective and
efficient for members of the New York bar who live and practice within the
State and for those located in other states and territories nationwide and in
numerous countries around the world. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">Attorneys obligated to pay the
$375.00 biennial registration fee may securely do so online using a credit or
debit card (with a 2.99% service fee) or with an eCheck (with a $1.00 service
fee). The $375.00 registration fee is allocated as follows: $60.00 is deposited
in the Lawyers' Fund for Client Protection, $50.00 in the Indigent Legal
Services Fund, $25.00 in the Legal Services Assistance Fund, and the remainder
in the Attorney Licensing Fund. No fee is required from attorneys who certify
that they are retired from the practice of law as defined in Part 118.1(g) or
those covered by Part 118.3. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">While a paper notice will continue
to be mailed to attorneys who have not opted to receive email notifications as
a reminder of their registration due date, the new notice will no longer
include a paper registration form to complete and return by mail. However, any
paper forms already in circulation will continue to be accepted for filing for
some additional period of time. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">Thank you for your assistance and
cooperation. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">Very truly yours, <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Arial",sans-serif; font-size: 11.5pt; mso-fareast-font-family: "Times New Roman";">Hon. Joseph A. Zayas, Chief
Administrative Judge<br />
Hon. Norman St. George, First Deputy Chief Administrative Judge <o:p></o:p></span></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-23930959395423559342023-11-09T13:26:00.002-05:002023-11-09T13:43:53.589-05:00NEW NASSAU COUNTY PC RULES ALSO ADDRESS ADR<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://ww2.nycourts.gov/sites/default/files/inline-images/supreme1.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="178" data-original-width="250" height="456" src="https://ww2.nycourts.gov/sites/default/files/inline-images/supreme1.jpg" width="640" /></a></div><br /><p></p><p align="center" class="MsoNormal" style="text-align: center;"><b style="mso-bidi-font-weight: normal;"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">PRELIMINARY
CONFERENCE PROCEDURE<o:p></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">Preliminary Conference Orders in Nassau County will
now be automatically generated with discovery deadlines as per statutory and/or
court rules.<span style="mso-spacerun: yes;"> </span>Parties shall confer and
complete the Deposition Schedule Rider which is available on the Nassau County Supreme
Court website. Depositions must be scheduled and conducted on a mutually
convenient date, time and location within 120 days of the scheduled Preliminary
Conference date. Counsel / Party must upload the Deposition Schedule Rider to
NYSCEF within 14 days of this Court Notice under document type “Deposition
Schedule Rider”. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"><span style="background-color: #fcff01;">All counsel must upload a signed copy of the “Attorney
Good Faith ADR Certificate” (available on Nassau County Supreme Court website) to
NYSCEF under document type “Affirmation” with comment “ADR Certification” at
least one day prior to the scheduled preliminary conference date.<span style="mso-spacerun: yes;"> </span>Self-represented parties need not submit the
certification.</span><o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">The link to the Nassau County Supreme Court website
is:<o:p></o:p></span></p>
<p class="MsoNormal"><span class="fontstyle01"><span style="font-size: 12pt; line-height: 107%;">http://ww2.nycourts.gov/COURTS/10JD/nassau/cicgeneralforms.shtml</span></span><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"><o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">The automatically generated Preliminary Conference
Order will have assigned Compliance / Certification and Settlement Conference
dates.<span style="mso-spacerun: yes;"> </span>Once signed by the assigned justice
the part clerk will upload the Preliminary Conference Order to NYSCEF.</span><b style="mso-bidi-font-weight: normal;"><span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><o:p> </o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">**
It is the responsibility of the filing party requesting the Preliminary
Conference to make all parties aware of the above Preliminary Conference
procedure including the Deposition Schedule Rider.<o:p></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"><o:p> </o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">*Any questions on the procedure may be directed to the
DCM Department at (516) 493-3100 or email the PC Department at
pcconf@nycourts.gov.<o:p></o:p></span></p><p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx</span></p><p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">NOTE FROM JMP: Th</span><span style="font-family: Arial, sans-serif; font-size: 12pt;">e preliminary conference procedure for all
matrimonial actions in Nassau County is unchanged. </span></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-58786698379367662482023-11-06T06:52:00.006-05:002023-11-06T06:52:57.379-05:00A HOTLY CONTESTED POST JUDGMENT CUSTODY DISPUTE<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEijsOG1qTvNUvcmBcV52T5AJNRg5W6W0PoznRwli1X3QfFbqC0i04NlmDgMpKMUC5SDAJ1Npp5LgiswuOQVV0zhHfV8oYagqGryK1-jQoNH4-FEBjZbY8mAkxZ0WV_Xt1v8pvaLChz5eN8kmluADkHEAtoG7IrHN-2CaZ_xhvVPAmo_r8-pX6VGOp5kpFDE/s762/JMPLAW3.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="458" data-original-width="762" height="384" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEijsOG1qTvNUvcmBcV52T5AJNRg5W6W0PoznRwli1X3QfFbqC0i04NlmDgMpKMUC5SDAJ1Npp5LgiswuOQVV0zhHfV8oYagqGryK1-jQoNH4-FEBjZbY8mAkxZ0WV_Xt1v8pvaLChz5eN8kmluADkHEAtoG7IrHN-2CaZ_xhvVPAmo_r8-pX6VGOp5kpFDE/w640-h384/JMPLAW3.png" width="640" /></a></div><br />SG v. MG, 2023 NY Slip Op 51063 - Nassau Co. Supreme Court 2023:<br /><br /><p></p><h2>"PRELIMINARY STATEMENT</h2><p></p>
<p>The Plaintiff moved by Order to Show Cause dated May 19, 2021<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[1]" name="r[1]">[1]</a></sup>
(Motion Sequence No.: 001) seeking an Order: (A) Modifying the parties'
Stipulation of Settlement, dated September 26, 2019 and Judgment of
Divorce, dated January 30, 2022 entered in the County's Clerk's Office
on February 6, 2020, by granting Plaintiff sole legal residential and
decision making authority regarding the health, education and general
welfare of the parties' children: SN G (d.o.b xxxx, 2009), SS G (d.o.b.
xxxx, 2012) and CS G (d.o.b. xxxx, 2014); (B) Modifying the
visitation/parenting time schedule, as set forth in our Stipulation of
Settlement, dated September 26, 2019, so that the Defendant's
visitation/parenting time with the subject child shall be suspended, or,
in the alternative, that Plaintiff shall have supervised visitation
with the subject children by an adult whom Plaintiff approves or agency
supervision; (C) Directing the Defendant to submit to a hair follicle,
urine and blood test and any other test the Court deems appropriate that
will detect drug use by the Defendant through TASC, or such other
laboratory as this Court may direct and directing that such hair
follicle analysis test for drug use for a period of no less than six (6)
months prior to the filing this application; (D) Directing that
Defendant be restrained from operating a vehicle while the children are
in the vehicle while Defendant is under the influence of any
prescription medications or illegal substances; (E) An Order directing
Defendant ensures the children abide by the school policies as agreed to
in the parties' Stipulation of Settlement, dated September 26, 2019;
(F) Granting to Defendant such other and further relief as this Court
deems just and proper.</p>
<p>The Defendant moved by Order to Show Cause dated June 16, 2021
(Motion Sequence No.: 002) seeking an Order: (a) Granting Defendant, MG,
an Order of parenting time with the subject children for the Jewish
Sabbath this weekend, beginning on June 18, 2021 at 6pm until June 19,
2021 at 10pm; and (b) Specifically allowing the Defendant's new wife, B
C, a registered nurse, to supervise the Defendant's visitation with the
subject children until further Order of this Court; and (c) Modifying
the "Drug Testing" provision of the Stipulation of Settlement, dated
September 26, 2019 with regard to prescribed medications, appropriate
supervisors should visitations need to be supervised, and the
Plaintiff's ability to compel the Defendant to submit to a drug screen
at any time; and (d) Modifying the parties' Stipulation of Settlement
regarding the Defendant's parenting time; and (e) Granting Defendant MG,
an Order of counsel fees in the amount of $2,000; and (f) For such
other relief as this Court shall deem just and appropriate.</p>
<p>The Plaintiff moved by Order to Show Cause dated August 23, 2021
(Motion Sequence No.: 003) seeking an Order: (A) Directing the
Defendant, MG, to release the name of the rehabilitation facility that
he attended on about August 2019 to Plaintiff's counsel, Jonathan E.
Kroll & Associates, PLLC; (B) That upon releasing the name of the
rehabilitation facility, directing the Defendant, MG, to sign and
execute the "Authorization for Release of Health Information Pursuant to
HIPPA" allowing the rehabilitation facility to release all records of
Defendant to Jonathan E. Kroll and Associates, PLLC; or in the
alternative, directing the Defendant MG sign and execute a release
allowing the attorney for the children, Patricia Latzman, to release all
records received from the rehabilitation center to Jonathan E. Kroll
& Associates, PLLC; (C) An order directing the Defendant, MG, to
sign and execute the "Authorization for Release of Health Information
Pursuant to HIPPA" to Dr. Binyamin Tepfer of Tepfer and Associates to
release all records of the Defendant to Jonathan E. Kroll and
Associates, PLLC; (D) An order directing the Defendant, MG, to sign and
execute the "Authorization for Release of Health Information Pursuant to
HIPPA" for his, M.D. to release all records of the Defendant to
Jonathan E. Kroll and Associates, PLLC; and (D) An Order directing
Defendant to pay $3,500.00 as and for Plaintiff's counsel fees; and (E)
Granting the Plaintiff such other and further relief as this Court may
deem just and proper.</p>
<p>The Defendant moved by Order to Show Cause dated August 26, 2021
(Motion Sequence No.: 004) seeking an Order: (a) Reinstating the
Defendant, MG's, parenting time, pursuant to the parties' Stipulation of
Settlement, dated September 26, 2019; and (b) Specifically allowing the
Defendant's new wife, B C, a registered nurse, to supervise the
Defendant's visitation with the subject children until further Order of
this Court; and (c) Directing the Plaintiff to provide the Defendant
with her home telephone number so that he may have direct contact with
the subject children; and (d) Directing the Plaintiff to comply with all
aspects of the parties' Stipulation of Settlement, dated September 26,
2019, specifically the joint legal custody provisions; and (e) For such
other relief as this Court shall deem just and appropriate.</p>
<p>The Defendant moved by Order to Show Cause dated June 3, 2022 (Motion
Sequence No.: 005) seeking an Order: (a) Directing that the subject
children spend the Shavuot holiday weekend (June 3 - 6, 2022) with the
Defendant, MG; and (b) Reinstating the Defendant, MG's, parenting time
without any supervision; and (c) Granting the Defendant, MG, parenting
time with the children alternate weekends, from Friday until Sunday at
6pm; and (d) Granting the Defendant, MG, equal parenting time during the
few weeks between school and summer camp for the summer of 2022; and
(e) Granting the Defendant, MG, the right of first refusal to care for
the children instead of a babysitter; and (f) Immediately setting this
matter down for trial; and (g) For such other relief as this court shall
deem just and appropriate.</p>
<p>The Plaintiff moved by Order to Show Cause dated September 12, 2022
(Motion Sequence No.: 006) seeking an Order: (A) Modifying the parties'
Judgment of Divorce dated January 30, 2020 (Dane, J.), to the extent of
granting Plaintiff, SG, permission to relocate with the subject
children, to wit: SN G, born xxxx, 2009; SS G, born xxxx, 2012; and CS
G, born xxxx, 2014, to Silver Spring, Maryland; and (B) Implementing a
parenting time schedule for Defendant consistent with Plaintiff's
proposed schedule that is in the best interests of the children; and (c)
Granting the Plaintiff such other and further relief as this Court may
seem just and proper.</p>
<p></p><h2>BACKGROUND</h2><p></p>
<p>In these post-judgment proceedings, the Plaintiff was initially
represented by Jonathan E. Kroll & Associates, PLLC. The Defendant
has been represented by Natalie Markfield, Esq., On September 14, 2021,
the Plaintiff executed a Consent to Change Attorney form, substituting
the firm of Quatela Chimeri, PLLC, in place and stead of Jonathan E.
Kroll & Associates, PLLC. The subject children have been represented
by Patricia Latzman, Esq. (hereinafter referred to as the "AFC").</p>
<p>The parties were married on xxxx, 2006. They have three (3) children,
to wit: SN (born xxxx, 2009), SS (born xxxx, 2012) and CS (born xxxx,
2014). The parties' matrimonial action was settled by a written
Stipulation of Settlement dated xxxx, 2019 (hereinafter referred to as
the "Stipulation). The parties were thereupon divorced by Judgment of
Divorce dated xxxx, 2020 (Hon. Edmund M. Dane, J.S.C.) (hereinafter
referred to as the "Judgment). Thereafter, six (6) post-judgment motions
were filed by the parties which are summarized hereinafter.</p>
<p>On the presentment date of Motion Sequence No.: 001 (to wit: May 19, 2021), the following interim orders were issued:</p>
<blockquote>IT IS FURTHER ORDERED, that the Defendant shall undergo hair
follicle drug testing, or such other drug test that will detect drug
use by the Defendant through TASC or such other entity as this Court may
direct to test for the use of drugs for a period of no less than three
months prior to the filing of this application pursuant to a separate
Order issued contemporaneously herewith; and it is further</blockquote>
<blockquote>IT IS FURTHER ORDERED, that pending a hearing of this
application, the Defendant shall not cut, dye, or bleach any hair on any
part of his body or use any substance in an attempt to alter the result
of any drug test administered to him.</blockquote>
<blockquote>A separate Drug Testing Order was issued on May 19, 2021 (Hon. Joseph H. Lorintz, J.S.C.).</blockquote>
<blockquote>On the presentment date of Motion Sequence No.: 002 (to wit: June 16, 2021), the following interim orders were issued:</blockquote>
<blockquote>ORDERED, that the Defendant-Father, MG, is granted an
immediate Order of parenting time for the Jewish Sabbath this weekend,
beginning on June 18, 2021 at 6pm until June 19, 2021 at 10pm; and it is
further</blockquote>
<blockquote>ORDERED, that the subject children are to be produced at the
Defendant's Wedding on xxxx, 2021, with supervisors M and B W; and it
is further</blockquote>
<blockquote>ORDERED, that unless otherwise agreed by the parties in
writing, the Defendant's new wife, B C, a Nurse Practitioner, shall be
immediately deemed an appropriate supervisory and shall be permitted to
supervise any and all visitation between the Defendant-Father and the
subject children until further Order of this Court.</blockquote>
<p>On June 22, 2021, this Court issued a Short Form Order setting forth the following:</p>
<blockquote>ORDERED, that the temporary order dated June 16, 2021, is hereby vacated; and it is further</blockquote>
<blockquote>ORDERED, that commencing on July 2, 2021, the Defendant
shall be entitled to enjoy alternate weekend parenting time with the
children commencing on Friday, one hour before shabbos, and ending on
Sunday, one hour after shabbos; and it is further</blockquote>
<blockquote>ORDERED, that Defendant shall be entitled to enjoy parenting
time with the children on Thursday's as set forth in the Stipulation of
Settlement; and it is further</blockquote>
<blockquote>ORDERED, that at all times set forth herein and at such
other times agreed by the parties, Defendant's parenting time shall be
in the presence of one or both of his parents (the children's paternal
grandparents); and it is further</blockquote>
<blockquote>ORDERED, that the Plaintiff shall be responsible for picking
up and dropping off the children for said parenting time; and it is
further</blockquote>
<blockquote>ORDERED, the terms of this Order shall be revised at the
next conference schedule for July 20, 2021 and are subject to
modification.</blockquote>
<p>On the presentment date of Motion Sequence No.: 004 (to wit: August 26, 2021), the following interim orders were issued:</p>
<blockquote>ORDERED, that, in addition to the parenting time granted to
the Defendant pursuant to the Order dated June 22, 2021, the Defendant
shall [sic] parenting time with the subject children on the Sundays in
which he has the children for Shabbat, from 9am - 7pm; and it is further</blockquote>
<blockquote>ORDERED, that, the Defendant shall have the children this
year for Rosh Hashana, Yom Kippur, and the second half of Succot,
pursuant to the Stipulation of Settlement; and it is further</blockquote>
<blockquote>ORDERED, that the children's step-grandparents shall be
immediately deemed an appropriate supervisor and shall be permitted to
supervise the Sunday visitation only between the Defendant-Father and
the subject children and B [sic] C may be present until further Order of
this Court; and it is further</blockquote>
<blockquote>ORDERED, that the Plaintiff is directed to give Defendant
her home telephone number so that Defendant may have direct contact with
the children.</blockquote>
<p>On September 21, 2021, this Court issued a Short Form Order which
granted Motion Sequence Nos.: 002, 003 and 004 solely to the extent that
said motions were referred to a hearing. On February 8, 2022, an Order
on Consent was issued by this Court directing, in sum and substance,
that the parties engage the services of Kids in Common for Parenting
Education & Parenting Coordination, that the Defendant's parents,
his parent's in-laws, and that his current Wife, B C, be permitted to
supervise the Defendant's parental access, and that the Defendant
produce records of his last three drug screens to counsel for the
Plaintiff.</p>
<p>On August 11, 2022, this Court issued an Order on Consent of Plaintiff and Defendant, which, <i>inter alia,</i> provided:</p>
<blockquote>ORDERED, that on consent of the Plaintiff and the Defendant,
neither parent shall discuss the issue of relocation with the children
pending further Order of this Court.</blockquote>
<p>The parties thereupon executed a Stipulation, <i>so ordered</i> by this Court on November 18, 2022, which provided as follows:</p>
<blockquote>1. The following shall be referred to the hearing currently scheduled for February 15th, 16th, 17th, and 23rd of 2023:</blockquote>
<blockquote>a) Motion Seq #1 — Plaintiff's Order to Show Cause dated May 19, 2021 — Branches A, B, D & E</blockquote>
<blockquote>b) Motion Seq # 2 — Defendant's Order to Show Cause dated June 15, 2021 — Branches C, D & E</blockquote>
<blockquote>c) Motion Seq #3 — Plaintiff's Order to Show Cause dated July 20, 2021 — Branch D-2</blockquote>
<blockquote>d) Motion Seq # 4 — Defendant's Order to Show Cause dated June 1, 2022 — C & D</blockquote>
<blockquote>e) Motion Seq #5 — Defendant's Order to Show Cause dated June 1, 2022 — C, D & E</blockquote>
<blockquote>f) Motion Seq #6 — Plaintiff's Order to Show Cause dated September 12, 2022</blockquote>
<p>2. All other branches of pending motions not addressed herein are hereby withdrawn.</p>
<p>On July 7, 2023, this Court issued an Order on Consent of Plaintiff and Defendant, which provided as follows:</p>
<blockquote>ORDERED, that the portion of the ORDER ON CONSENT dated
August 11, 2022, which directed that neither parent shall discuss the
issue of relocation with the children pending further Order of this
Court, is hereby RECALLED AND VACATED, on consent, and shall be of no
further force and effect, effective immediately; and it is further</blockquote>
<blockquote>ORDERED, that the parties are hereby permitted to discuss
the issue of relocation with the children, however, neither party shall
influence the children or cause any third party to influence the
children with respect to the issue of relocation.</blockquote>
<p>The aforesaid branches of the aforesaid motions proceeded to a
hearing conducted before the undersigned Justice on May 30, 2023, May
31, 2023, June 1, 2023, June 15, 2023, June 16, 2023, July 10, 2023, and
July 21, 2023. An <i>in camera</i> with the three (3) subject children
was held on July 21, 2023. The matter was thereupon adjourned to August
11, 2023 for the submission of post-trial written submissions. The
submission date was adjourned on consent to August 21, 2023. The
submission date was thereupon adjourned again — over the objection of
the Plaintiff's counsel — to August 23, 2023. The submission date was
adjourned one final time, on consent, to August 24, 2023. Throughout
this Decision and Order, the Plaintiff will be referred to as the
"Mother"; the Defendant will be referred to as the "Father"; and the
three (3) children will be referred to either as the "children", the "G
children",<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[2]" name="r[2]">[2]</a></sup> or by their individual respective names, where appropriate.</p>
<p></p><h2>THE HEARING TESTIMONY</h2><p></p>
<p>A court's custody determination is dependent in large part upon its
assessment of the witnesses' credibility and upon the character,
temperament, and sincerity of the parents. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=16152999660947095124&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Gayle v. Muir,</i> 211 AD3d 942 (2d Dept. 2022)</a>.
In addition, weighing the factors relevant to any custody determination
requires an evaluation of the credibility and sincerity of the parties
involved. <a href="https://scholar.google.com/scholar_case?case=16642713468678266998&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Spence-Burke v. Burke,</i> 140 AD3d 1124 (2d Dept. 2017)</a>.
The Court has attempted to summarize the sum and substance of the
testimony of the witnesses as is more fully set forth herein. In
addition, when necessary and throughout this Decision and Order, the
Court herein quotes the salient portions of the testimony that it
highlights which the Court finds relevant to its determination.</p>
<p></p><h2>A. Mother's Case:</h2><p></p>
<p></p><h2>MA:</h2><p></p>
<p></p><h2><i>Direct Examination</i></h2><p></p>
<p>MA (hereinafter referred to Mr. A") testified generally as to his
relationship with the Mother, his children, his employment, his home,
and the G children. He lives in Silver Spring, Maryland, where he has
lived for approximately eleven (11) years. He married the Mother on
xxxx, 2022. This is his second marriage, with his first marriage ending
in divorce. He has two children from his first marriage, L and Y. He
sees his children approximately forty (40%) percent of the time, seeing
them on Wednesday and Thursday in one week, and Thursday through Sunday
the following week. He is employed as a data engineer for XXXX earning
approximately $185,000.00 per year. He has spent time with the G
children, generally over the Jewish Sabbath, the Jewish holidays, and
when they come home from school. The G children and Mr. A learn the
Torah together, talk and converse,"hang out", and go to dinner. He has a
five (5) bedroom single family home with a safe yard and where all of
the children have rooms.</p>
<p></p><h2><i>Cross-Examination — Father's Counsel</i></h2><p></p>
<p>Mr. A and the Mother were "matched" through a friend, which he
classified as "Jewish dating". He was aware that the Mother lived in New
York when they first met. He became engaged to the Mother approximately
three (3) months after they met. Mr. A was concerned that the Mother
lived in New York while he lived in Maryland. Mr. A could not relocate
due to the nature of his employment, his attachment to Maryland and it
would create issues with him seeing his own children. The Mother is with
Mr. A when the G children are with the Father. During this time, the
Mother sees Mr. A's children. The G children generally do not travel
back and forth from New York to Maryland (and vice-versa). The G
children refer to him as "abba"; this means "Father" in Hebrew.</p>
<p></p><h2><i>Cross-Examination — AFC</i></h2><p></p>
<p>If the G children are permitted to relocate to Maryland, SN and SS
will sleep in one bedroom, and CS and L will sleep in another bedroom. Y
will have his own bedroom. He is willing to repopulate rooms to make
all of the children happy. The G children refer to him as "abba".
Additionally, the G children call the Father's wife "emma", which is
"Mother" in Hebrew.</p>
<p></p><h2><i>Re-Direct Examination</i></h2><p></p>
<p>Mr. A works on a "hybrid" basis: he predominantly works remotely from
his home, but he is in the office once every two weeks. He considered
himself "ultra" orthodox. His children interact with the G children. For
instance, when the G children spent seven (7) days in Maryland, last
summer, he saw all of the children interact. They presented as calm and
pleasant, and he described the interaction as "good". He did not observe
any "clashing" between his children and the G children.</p>
<p></p><h2><i>Re-Cross Examination — Defendant's Counsel</i></h2><p></p>
<p>Mr. A understood during the period in which he dated the Mother that
she may or may not be permitted to relocate. He spends approximately
eighteen (18) days per month together with the Mother.</p>
<p></p><h2>SG:</h2><p></p>
<p></p><h2><i>Direct Examination</i></h2><p></p>
<p>The Mother testified as to some background information. She was
married to the Father for approximately thirteen (13) years and they
have three (3) children together. Their divorce action was settled with
the assistance of a mediator, and the parties executed the Stipulation
and were subsequently divorced by the Judgment. The parties agreed in
the Stipulation that the children would live with her, and that the
Father would have parenting time every other weekend from Friday (timed
to Sabbath) through Sunday at 5:00 p.m. The Father was also to return
the children to the Mother one-hour before school starts. The Father
also had additional parenting time every Thursday for dinner. The
parties also agreed to alternate Jewish holidays. At the time that the
parties executed the Stipulation, the Mother lived in Inwood, New York,
and the Father was living with his parents in Hewlett, New York. The
Mother remained in Inwood — which was the location of the "marital
residence" — for approximately one (1) year after the Stipulation was
signed. After that, the Mother relocated out of Inwood. She is employed
as the Chief Compliance Officer at XXXX. She earns anywhere from
$120,000 to $150,000 per annum. Her income now is more than at the time
of the Stipulation. At the time of the execution of the Stipulation, the
Father was not employed.</p>
<p>The Mother testified as to the Father's use of Adderall. In or around
August of 2019, the Father entered into drug rehabilitation. The
Husband had overdosed on Adderall and the Mother asked him to attend
rehabilitation. When the parties would attend "couples therapy"
sessions, the Father would arrive "high". The parties discussed the
Father's drug use prior to the execution of the Stipulation. The Father —
in the Stipulation — agreed to monthly drug testing for a period of two
(2) years. The Husband spent the better part of a decade addicted to
Adderall. The Mother wanted the children to be protected and did not
believe that it was okay for the children to live in a house where a
parent was using drugs. The Mother can compel the Father to submit to
random drug testing, and the Father is to inform the Mother if he fails a
test. While the Mother received clean test results from the Father
after September 26, 2019, in November of 2020, the Mother learned of new
Adderall use by the Father from a Rabbi. She described feeling like a
"deer in headlights". The Mother was concerned about the Father
overdosing. The Mother then made an application to the Court seeking
drug testing, and a hair follicle test was ordered.</p>
<p>The Mother testified about the schooling of the children. SN attends
an Orthodox school and is in the eighth grade. SS attends the same
school and is in fourth grade. CS attends a different Orthodox school
and is in third grade. The Father is aware of where all of the children
attend school. There are no after school activities. SN arrives at
school at 7:05 a.m. and is home by 5:30 p.m. SS starts school at 8:30
a.m., which ends around 4:20 p.m. CS attends school from 8:30 a.m.
through 4:00 p.m.</p>
<p>The Mother testified as to the extracurricular activities of their
children as well as their socialization. SN participates in guitar
lessons once per week. CS will likely start taking swimming lessons
again. SN has no close friends. SS has no close friends. CS is
struggling as she has no close friends.</p>
<p>The Mother testified as to her arrangement with Mr. A and her desire
to relocate to Maryland. When the Mother has her custodial time with the
children, Mr. A travels to New York prior to the Sabbath, and then
leaves on Tuesdays. On the weekends in which the Father has parenting
time with the children, the Mother takes the children to the Father's
home and then travels to Maryland to be with Mr. A. The Mother then
leaves Maryland on Sundays at noon and picks-up the G children by 6:00
p.m. The result is that Mother and Mr. A will not see each other until
the next Friday.</p>
<p>The Mother testified regarding her desire to relocate to Maryland and
the Father's parental access if she is permitted to relocate. The
Mother described her relationship with Mr. A as being a married couple
when they are together, but when they are not together, it is as if she
is a single mother. The G children are always asking for Mr. A. She
effectively testified that the Father's parental access need not change.
SN was accepted to an Orthodox boarding school (with a dormitory)
located in Baltimore, Maryland. This school starts at 7:30 a.m. and
concludes at 4:00 p.m. After SN eats dinner, he returns to school until
9:00 p.m. This school permits family member access on the Sabbath. If
she lived locally (meaning in Maryland), she would be able to see SN at
the school somewhat regularly. The Father currently has alternating
weekend parental access with the children, and that could continue. On
one weekend, the Mother would drive the children to New York (every
fourth week), and on the other weekend, the Father can travel to
Maryland to have access with SS and CS and also see SN at the boarding
school. The Mother is willing to assume the cost of gas or reasonable
flight expenses for the Father if he travels to Maryland. The Mother is
willing to do what it takes and what is necessary to facilitate the
Father's lodging. While the Father is supposed to have parenting time on
Thursdays from 5:30 p.m. to 7:00 p.m., to make this up to the Father,
she is willing to give the Father an entire week at the beginning of
each summer.</p>
<p>The Mother testified as to SS's and CS's proposed education in
Maryland. The school in Maryland is more inclusive and "sweeter" for CS.
SS would attend the same school, which has more educational resources
than the school in New York. SS currently has an IEP. The Mother met
with the Principal of the school in Maryland, told the Principal of SS's
educational needs, and she formed a belief that there are resources at
this school that will enable him to be successful. The school — has a
fifteen-to-one student-teacher ratio, whereas the current school's
parent-teacher ratio here in New York is twenty or twenty-five-to-one.
The Mother believes that the smaller student-teacher ratio will be
beneficial for SS.</p>
<p>The Mother testified regarding the religious upbringing of the
children. An issue arose about adherence to Jewish Law, and one
philosophy is insulating the children from technology. For instance, the
children are not exposed to PG movies and the children are in a school
where they are not exposed to secular movies. There is no access to
Netflix in the Mother's home for the children. However, the children
have access to Netflix in the Father's home. A dispute also arose
regarding whether or not the children should watch a PG-13 movie. The
proposed relocation to Maryland will enhance the religious upbringing of
the children as the schools in Maryland are strong with a good
"mind-set". There is less "materialism" in Maryland then there is in New
York. The children are taken to an "unsuitable" Synagogue by the Father
in the Five Towns, and it is "unsuitable" because the men there were
not necessarily ultra orthodox. Jewish men are supposed to pray three
times per week in a Minyan, but the Father does not take SN to do this.</p>
<p>The Mother testified about the economic benefits of relocating to
Maryland. The cost of living in Maryland is cheaper than here in the
"five towns". It is less pretentious in Maryland. The Mother keeps a
Glatt Kosher kitchen. Mr. A also keeps a Glatt kosher kitchen, so, in
Maryland, this will continue. The Mother currently receives $750.00 per
month in child support from the Father. The parties' Stipulation
required the Father to pay $900.00 per month for the first three years
and $1,100.00 per month thereafter. The Mother is only receiving $750.00
per month, but the Father unilaterally deducts what is owed in
equitable distribution from the Mother to him from his child support
obligation. The Mother has not had an increase in child support. There
is supposed to be additional support in the form of tuition, camp, child
care, tutoring, and extracurricular activities. There have been issues,
however, with the Father reimbursing the Mother for some of these
expenses. For instance, the Father said that he would pay for guitar
lessons, and while he paid a few times, he ceased paying. The Father did
not pay 50% of the Yeshiva for 2019 through 2020. This also occurred
for the 2020-2021 school year. The parties are to share camp expenses on
a "50/50" basis, but the Mother has been fully responsible for same.
The Mother paid and was reimbursed for year 2022, but not for year 2021.
The Mother pays for tutoring expenses for SN. CS began seeing a
therapist in January, 2021, but the Mother has not received any
reimbursement from the Father for this.</p>
<p>The Mother testified about why a proposed relocation to Maryland is
in the best interests of the children in her opinion. SN will attend
school there, and the two other children, who look up to him, want to
stay near him. The Mother also believes that it behooves SN to have her
living nearby. CS needs a new social situation, and Maryland is affords
her new beginnings. SS loves the wooded area there, and the new school
environment will give him more attention.</p>
<p>The Mother testified regarding certain disagreements with the Father.
A woman by the name of Dina Leff (hereinafter referred to as "Ms.
Leff") has counseled SN and SS since the divorce. The school provided SN
and SS with Ms. Leff as a counselor, and she helped the boys through
the parties' divorce. The Father wanted Ms. Leff to tell him what the
boys said during counseling sessions and, then the Father refused Ms.
Leff's services for the boys. While court intervention resolved the
issue, the two boys went without a therapist for a few weeks because of
the Father's objections. The parties had another disagreement over a
medical issue. SS is allergic to dogs and cats, but a cat was brought to
the Father's parent's house, which was where the Father lived at the
time. The middle child was returned to the Mother with rashes and was
treated by the pediatrician. The cat was then given away to another
family member.</p>
<p></p><h2><i>Cross Examination — Father's Counsel</i></h2><p></p>
<p>The Mother initially found out about the Father taking Adderall again
in November of 2020. The Mother could not recall if there were concerns
about the Father's drug use from the date of the Stipulation through
November of 2020. Prior to the filing of her application in May of 2021,
the Mother stopped the Father's parenting time, but she was unsure when
the stoppage occurred. The Mother could not recall if there were any
concerns about the Father's behavior from November of 2020 through May
of 2021. When the Mother found out that the Father was taking Adderall
again, she acted to protect the children. She could not recall, however,
when the Father's parenting time regularly ceased. The Mother learned
that the children were introduced to B C (hereinafter referred to as
"Ms. C") when a friend sent the Mother an invite for an engagement party
of the Father and Ms. C. At that time, the Father still had some
parenting time with the children.</p>
<p>The Father complied with the order of the court for drug testing
issued in or around May 19, 2021. While the Mother could not recall
whether or not the drug screens were positive or negative, the drug
screening results from May 26, 2021 were negative; as were his two
subsequent drug screens after the filing of the Mother's application.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[3]" name="r[3]">[3]</a></sup>
While the Father had three (3) negative drug test results after the
filing of the Mother's application, the Father chose to restrict or
limit his own parenting time and see the children in his car. The Mother
did not impose this upon the Father. Nonetheless, the Mother did want
the Father's parenting time supervised because the Stipulation provided
for it. It was the Mother's belief that "substance abuse" means the use
of drugs or substances for which the Father went into rehabilitation
for. The Mother believed that the Father was still using Adderall after
June of 2021. The Mother could not recall whether or not the Father
requested access with the children for June 18, 2021 and June 19, 2021.
She likewise could not recall whether or not the temporary orders of the
Court permitted the Father's new wife, Ms. C, to be the supervisor.</p>
<p>The Mother moved to Far Rockaway in December of 2020 with the
children, but she could not recall if she discussed moving with the
Father prior to the move. The Mother acknowledged that the Stipulation
provides for joint legal custody of the children and that, in sum and
substance, the parties were to discuss all major decisions concerning
the health, education and welfare of the children. The Mother could not
recall if she gave the Father her new residence address or land line
telephone number.</p>
<p>While the children have been seeing Ms. Leff since the divorce, the
Mother, could not recall if she signed an authorization to allow the
children to see Ms. Leff nor could she recall whether or not she
discussed the children seeing Ms. Leff with the Father. The Mother could
not recall if the Father had asked her if the children were seeing a
medical provider, such as, for example Ms. Leff. If the children are
permitted to relocate, they can still see Ms. Leff on a virtual basis.
The Mother did not recall if she told the Father that the children would
be treated by Ms. Leff.</p>
<p>The Mother could not recall if she allowed the children to go to the
Father for Shavuot in 2021 even though he was supposed to have this
holiday in odd years. However, she acknowledged that the parties' so
ordered Stipulation of June 8, 2022 provides that the Father would have
the children in 2024 to make-up for 2021. The Mother acknowledged that
the Father also saw the two boys over Shavuot in 2022 for an overnight
visit.</p>
<p>The Mother withdrew her request for sole custody and sole decision-making without prejudice.</p>
<p>The Mother could not recall if she told the Father about phone
meetings relative to SS's IEP. While the Father asked the Mother for a
copy of SS's IEP, the Mother could not recall if she ever sent a copy of
it to the Father. SN had issues with gas and constipation, and the
Mother took the child to a doctor for same, but she could not recall if
she notified the Father of same. The Mother acknowledged that the
Stipulation addresses notice of professional appointments. The Mother
acknowledged taking the children to second doctor and the Mother
acknowledged not providing the Father a "heads up" with respect to same.
SS had a neuropsychological evaluation as directed by the Board of
Education this past school year, but the Mother could not recall whether
or not she advised the Father about this evaluation. The Mother took SS
to the neuro-psychologist three (3) times, but the Mother could not
recall if she told the Father about any of the three (3) visits to the
neuro-psychologist.</p>
<p>The Mother filled out the application for SN to attend the high
school in Baltimore. The Mother could not recall if she notified the
Father about submitting SN's application to the boarding school. The
Mother could not recall listing the Father as the "Father" on the
application to the boarding school, and she could not recall whether or
not she provided the Father's email address or his phone number on that
application. The Mother acknowledged that the application listed Mr. A
as the step-father and listed the Father as the Father, but acknowledged
that the application did not indicate that the Father receive
correspondence. The application did not list the Father's phone number
or email address, and the Mother could not additionally recall if she
notified the Father of this application after she submitted it. To date,
the Mother acknowledged that she and the Father have not discussed
sending SN to The boarding school. The Mother acknowledged Mr. A drove
SN to the interview at The boarding school, and the Mother acknowledged
that she did not tell the Father that SN was going to the interview. The
Mother likewise acknowledged that she did not offer to the Father the
opportunity to take SN to the interview. SN actually interviewed at four
(4) different schools, but the Mother could not recall whether or not
she told the Father about any of the four interviews. SN was accepted
into The boarding school. The Mother enrolled SN in The boarding school,
but acknowledged not consulting with the Father prior to enrolling him.
While the Mother acknowledged that the parties are to consult on major
decisions, she was under the assumption that the Father knew everything
that was going on.</p>
<p>Even if the Mother is granted permission to relocate, she
acknowledged that she will keep the same job. The Mother acknowledged
not having informed the Father of her engagement to Mr. A at the time of
the engagement. While the Mother testified that if she is permitted to
relocate, the Father could maintain, generally, the same access schedule
that he currently has with the children, she acknowledged that it is
"highly impossible" to continue the Thursday dinner visits. While the
Father previously asked for a Thursday overnight with the children, she
could not recall if she "allowed" it. The Mother nonetheless
acknowledged that she wanted the children to have a healthy relationship
with the Father. In the past year, the Mother acknowledged having taken
the children out of school early to drive to Maryland, and agreed that
it is important for both parents to know where the children are in the
case of an emergency. The Mother, however, could not recall whether or
not she traveled to Maryland without telling the Father. The Mother is
aware that the Father is seeking more parenting time. She is unsure as
to whether or not the current schedule is "a lot" of parenting time for
the Father. When the children are with the Father, there is a lot of
"video time", and the Father does not spend much time with the children.</p>
<p>There was an oral Stipulation placed on the Record during the Hearing
that the Father is current in his basic child support obligation to the
Mother.</p>
<p>The Mother acknowledged that the G children have only been with her
stepchildren (Mr. A's children) a "handful" of times. The Mother
acknowledged that if she is not allowed to relocate to Maryland, she
will not move to Maryland.</p>
<p></p><h2><i>Cross Examination — AFC</i></h2><p></p>
<p>The Mother would make the decisions for the children prior to the
dissolution of the parties' marriage. She described herself as the
"main" parent for the children. The Father gave the Mother "full
latitude", knowing that the Mother wanted what is best for these
children. The Mother always chose the schools for the children, and the
Father never provided alternatives to the schools chosen by the Mother.
The Mother selected the pediatrician and the dentist for the children,
and the Father was never unhappy with the Mother's choice. To the
Mother, her agreement to joint custody was simply her agreement to
"boilerplate" agreement, as the Father was not in a good place at the
time. The Father had just gone to rehabilitation for drug use. While the
Father is very loving to the children, he is not necessarily a
"present" parent and was not "hands on". There were times, after the
separation of the parties, that the Father would decline parenting time.
The Father did not attend any IEP or CSE meetings for SS, and the
Father would leave the child's educational decisions in the hands of the
Mother.</p>
<p>The Mother did not want the Father to have parenting time with the
children unsupervised. The Mother opposed using the Father's parents as
supervisors, as they knew about his drug use and would, effectively, do
nothing. The Mother petitioned this Court for a modification of the
Father's parenting time. The Father, prior to the Mother interposing her
application, did not seek any modifications with respect to his
parenting time. When the Father's drug test results came back
"positive", unsupervised visits stopped. The Father was addicted to
Adderall and other drugs, and when he would take too much, he would not
sleep for nights. The Father would exhibit anger, jitters and suffer
from mood instability.</p>
<p>The Mother informs the Father beforehand when she takes the children
to the doctor. While the Father just recently went with the Mother to
SS's colonoscopy appointment (just prior to the litigation), the Father
never historically attended doctor appointments for the children. The
Father never complained about the children's participation in
extracurricular activities. The Father never asked the Mother about the
children; he only did so, to some degree, after this litigation started.</p>
<p>The Mother did not provide the Father's contact information on the
application for SN to The boarding school because the application was
only for the interview. The Mother simply "checked" the boxes.</p>
<p>When the children are with the Father, they spend time on watching
videos and spend time with their grandmother. While the Mother has not
discussed relocation to Maryland with the children, SS has asked the
Mother to move to Maryland. SS is aware that Mr. A and his
children/step-siblings live in Maryland. If the Mother is allowed to
relocate to Maryland, she wants to know what the Father wants for
"make-up" time. She wants these children to have a healthy relationship
with and to be connected to their Father. If the children attend summer
camp in New York, she is willing to make it up to the Father with
additional time in the summer months.</p>
<p></p><h2><i>Re-Direct Examination</i></h2><p></p>
<p>The Father never told the Mother directly that he was engaged to Ms.
C. From January, 2020 to the present, the Father would take the children
to Teaneck, New Jersey without telling the Mother. The Father would
stay overnight without notifying the Mother. When the Father requested
an overnight with the children in April of 2023, the Mother declined,
citing concerns of the Father's mental health and the children "changed
their stories" over where the Father was. The Mother therefore had
concerns about the Father overdosing and using Adderall again. The
Father has previously lied about his substance abuse. The Father did not
seek to enforce unsupervised access with the children prior to the
Mother starting the instant post-judgment proceedings. For the five
months prior thereto, the Father accepted supervised access.</p>
<p>The children began attending summer camp at the age of three (3)
years. The Father never selected the camp nor, did he object to any
camps chosen by the Mother.</p>
<p>The Father recently missed two Thursday visits with the children and
did not ask to reschedule those visits. While the Father has parenting
time on Thursday of each week, that visit is only ninety (90) minutes in
duration per visit. This equates to approximately three (3) total days
of parenting time. The Mother is prepared to add an additional seven (7)
days to the Father's parenting time per year in the summer if she is
permitted to relocate.</p>
<p></p><h2><i>Re-Cross Examination — Father's Counsel</i></h2><p></p>
<p>The Mother believed that it was "fruitless" to discuss certain things
with the Father, as the Father was untruthful with her. Nonetheless,
the Mother acknowledged that when the Mother brought a concern to the
Father about the children watching a certain movie, the children did not
watch the movie. The Mother was unsure as to how she would feel if she
only got to see her children every two weeks and not during the week.</p>
<p></p><h2><i>Re-Cross Examination — AFC</i></h2><p></p>
<p>If the Father were to travel to Maryland one per week, he can visit
with the children on Thursdays, and even on Tuesdays, if the Father
wants it.</p>
<p></p><h2>B. Father's Case:</h2><p></p>
<p></p><h2>Anasuya Delgado:</h2><p></p>
<p></p><h2><i>Direct Examination</i></h2><p></p>
<p>Anasuya Delgado (hereinafter referred to as "Ms. Delgado") testified
as to background information and her assigned task. She is employed at
Kids in Common (hereinafter referred to as "KIC"). She conducts
supervised visititation sessions and co-parenting sessions with the
parties. These began in May, 2022. All of the sessions were conducted
virtually. The parties discussed co-parenting and co-parenting styles.
She observed the Mother to be receptive to the "materials" with little
feedback.</p>
<p>Ms. Delgado testified about the Mother. The Mother was disengaged for
a majority of the sessions, was busy typing on her phone and
communicating with others, as compared to the Father, who was very
engaged. The Mother would leave sessions early.</p>
<p>Ms. Delgado testified about the Mother's desire to relocate. The
Mother read a letter about her desire to relocate. While the Father was
"receptive" to listening, he was not willing to allow the relocation.
The Father would not even consider dating anyone who lived far away.</p>
<p></p><h2><i>Cross Examination — Mother's Counsel</i></h2><p></p>
<p>Ms. Delgado generated only one report. The witness was told to
generate the report by her direct supervisor, Meg Sayers. While the
witness testified that KIC received a request from the Court to provide
services, she has not seen any actual orders, nor was she aware of the
terms of the parties' Judgment.</p>
<p>While the Mother was observed to be typing during some sessions with
Ms. Delgado, she was unsure if the Mother was typing notes. The Father
was identified at intake as presenting a problem of not being able to
discuss parenting issues with the Mother, issues with parenting time,
and not being privy to many things. The Father did not say that there
was any objection to any of the activities of the children or any of the
medical decisions which were made.</p>
<p>Other than the sessions with the parties, the witness was unsure if
the parties ever implemented the guidance given at the sessions.</p>
<p></p><h2><i>Cross Examination — AFC</i></h2><p></p>
<p>Ms. Delgado described the Mother has making minimal eye contact and
that the Mother spent most of her time on the phone typing, and she
therefore concluded that the Mother was not receptive. While Ms. Delgado
has administered co-parenting work for seventeen years, and while she
claimed she had experience, she acknowledged that she did not receive
any training by any experts. Ms. Delgado acknowledged that she has
received no training programs since college.</p>
<p></p><h2><i>Re-Direct Examination</i></h2><p></p>
<p>While Ms. Delgado was not familiar with the Court order assigning
KIC, she provided services consistent with the terms of the order. Ms.
Delgado reiterated that the Mother was on her phone typing during the
sessions. Ms. Delgado noticed that the Mother would be disengaged
sporadically for quick moments every session. Ms. Delgado reiterated
that the Father was receptive to the conversation about the relocation,
but only to the conversation, and he was not receptive about the Mother
actually relocating.</p>
<p></p><h2><i>Re-Cross Examination — Mother's Counsel</i></h2><p></p>
<p>While Ms. Delgado has performed parent-coordination work for
approximately seventeen (17) years, she has maybe worked with only five
(5) families that are ultra-orthodox. Ms. Delgado did not discuss Jewish
law.</p>
<p></p><h2><i>Re-Cross Examination — AFC</i></h2><p></p>
<p>Ms. Delgado is not fully aware of the parameters of the Judgment with
respect to following of Jewish law, and Ms. Delgado was unaware of
certain restrictions.</p>
<p></p><h2>B C:</h2><p></p>
<p></p><h2><i>Direct Examination</i></h2><p></p>
<p>Ms. C testified as to background information. She is the Father's
current wife who met the Father in January, 2021 and married him on June
20, 2021. Ms. C has a son and daughter. Those children principally live
with her. She is employed as a Family Nurse Practitioner.</p>
<p>Ms. C testified as to her involvement with the Father and the G
children. She maintains contact with the G children. At home, she, the
Father, and all of the children get together as a family. She cooks for
Shabbos. Ms. C is Tznivs and she covers her hair. There is only Kosher
food and dishes in the home. Everyone is Kosher observant. Since all of
the children enjoy different foods, she makes different food for all of
the children. During Shabbos, they all bond by eating, playing board
games, playing basketball and reading. She has observed the Father
taking walks with the children. The Father reads and plays with the
children. She engages in activities with the G children, and she feels
bonded to them.</p>
<p>Ms. C testified about the interactions of the children. All of the
children act like siblings around one another. The children hangout
together, and have spent alternate weekends together for the past two
years. The children spend birthday celebrations together. Last summer,
all of the children went to the Poconos together for a week. They all
had fun tubing and hiking.</p>
<p>Ms. C testified as to her knowledge of the Father's Adderall usage.
While the Father may be taking Adderall, she has had no reason for
concern nor concern for any of the children.</p>
<p></p><h2><i>Cross Examination — Mother's Counsel</i></h2><p></p>
<p>The G children refer to Ms. C as "emma", which is "mother" in Hebrew.
She works 8:30 a.m. to 3:30 p.m. Monday through Thursday, and 8:30 a.m.
to 1:00 p.m. on Fridays. The Father is self-employed and makes his own
schedule.</p>
<p></p><h2>MG:</h2><p></p>
<p></p><h2><i>Direct Examination</i></h2><p></p>
<p>The Father testified as to some background information of the
parties. They separated in or around the Spring/Summer of 2018. The
Father moved out in stages. While he returned for a short time, there
was no improvement. The Father admitted to overusing Adderall prior to
the separation of the parties, and he used it off and on for about seven
(7) years. The Father never overused alcohol or marijuana. When the
parties were living together, the Father described the family as a
"close family unit".</p>
<p>The Father described and summarized his relationship with the
children. He described his relationship with SN as being "very involved"
and that they were "physically and emotionally" close. He is very
involved in SN's schooling, as he always knew that both boys would
attend a particular school. The Father, therefore, never felt the need
to offer an alternative school for the boys. The Father was involved in
the procedure to procure the IEP for SS. For CS's schooling, there was
school that the Mother preferred and "pushed for", even though the
Father thought another school was more viable. Ultimately, CS was
accepted into this school due to the Mother's tenacity.</p>
<p>The Father testified as to his involvement in the medical care of the
children. He estimated that, for doctor "well visits" and when the
children were sick, he would take the children to the doctor around
twenty (20%) percent of the time. He worked a distance from the home, he
was gone in the morning early and he came home late from work. The
Father took SS to his colonoscopy appointments.</p>
<p>The Father testified as to his entrance into rehabilitation. He
entered a drug rehabilitation program in July of 2019. His separation
from his family caused a tremendous amount of questioning about his
life. He described being in a lot of pain. He began drinking alcohol and
utilizing marijuana. He enrolled himself in a six-week program. Six
months prior to his admission, he saw the children while he was living
with his parents. The children were driven to his visits by the Mother.</p>
<p>The Father testified about drug testing. The Stipulation does not
restrict him from utilizing Adderall, but it does have a drug testing
provision. The Father was not using Adderall at the time of the
Stipulation, but he started utilizing it in or about November of 2020.
From the date of the Stipulation, the Father participated in drug
testing at clinics. The results of the first two tests were sent to the
Mother, but there is nothing in the Stipulation that requires the
results be sent to the Mother. In or about November, 2020, the results
of a drug test were positive for Amphetamines. The Father was taking
regular drug tests, but there were positive test results due to the use
of Adderall. The Father did not classify this as "substance abuse"
because Adderall is not an illegal substance. The Father only took
Adderall in accordance with the prescription provided to him. His
visitation with the children never should have been supervised because
his Adderall was prescribed by his treating health care provider.</p>
<p>The Father testified about his parenting time. His contact became
limited to phone calls with the children. Then, the Father elected to
see the children in a car in front of the house. It was his decision to
see the children in a car, because, in his opinion, it was better than
seeing the children with a supervisor present. The Father provided
letters to the Mother from the clinician who prescribed the Adderall,
but the Mother refused to accept those letters. The Father was supposed
to have the children for the Passover holiday in 2021 pursuant to the
Stipulation, but this parental access was denied by the Mother.</p>
<p>The Father testified about the months from March, 2021 through May,
2021. He had hoped to resolve the issues without the necessity of court
intervention. Prior to the Mother seeking court intervention, the Father
would see the children in his car approximately two times per week in
front of the home. Upon the court ordering drug tests in May of 2021,
the Father tested every month and all tests came back negative.</p>
<p>The Father testified surrounding parenting time during the Auf Ruf
weekend (the celebration of his engagement). He was to have regular
parenting time with the children on this weekend. The Mother refused.
This weekend was special to him. The children attended the Auf Ruf, but
they were supervised. The children also attended the Father's wedding.
The Father asked the Mother if the children could be there unsupervised,
but the Mother did not agree. He needed a court order, and the children
were ultimately produced.</p>
<p>The Father spoke about his continued Adderall use. He acknowledged
that he continues to take Adderall as prescribed. The Father denies
having any substance abuse issues.</p>
<p>The Father testified about religion. He describes himself as Jewish
Orthodox. During their marriage, the parties were strictly Kosher in the
home and their food only came from approved places. When the parties
were married, both were observant. At his current home, he observes the
highest level of Kosher. The Father has a smart television at home, and
he can use it watching "apps" like Netflix. The parties' Stipulation
does not contain any restrictions on the use of videos, movies or
television. However, the school rules must be followed. There is a
typical Shabbos at the Father's home when he has the children. The boys
and the Father go to evening prayers. His step-son sometimes accompanies
them. When they return home, the Father blesses the children, they have
a festive dinner, and they talk. On Fridays and Saturdays, there is a
lot of "game playing", such as board games and basketball. The Father
spends one-on-one time with each child on Thursday and on weekends which
he characterizes as "special time" so to enable him to talk in-depth
with that child. Each child's birthday is important to the Father, as a
theme is selected and the entire family is invited. The Jewish holiday
of Shavuot is important to the Father as he can uphold the tradition of
learning prayers. The Father is supposed to have this holiday with the
children every "odd year" in accordance with the Stipulation. The Father
was supposed to have the children in 2021, but the Mother denied him
the right to see the children. In 2022, which was the Mother's year, the
Father walked from Woodmere to East Rockaway (which is an
hour-and-a-half walk each way) to see the boys and learn with them
overnight.</p>
<p>The Father testified about his parenting time. In the last two years,
a majority of his parenting time with the children is at his home in
Woodmere. The Father's step-son and step-daughter are present, and they
are present when the G children visit him. He describes the relationship
as "very close" and that they are "bonded" together. At times, the G
children play well with his step-children, and, at other times, they are
"at odds". They all go on family trips, such as to amusement parts, on
hikes, and they play miniature golf. He describes his children as having
a loving relationship with Ms. C and their step-siblings. In fact, when
he speaks to the children during their time with the Mother, the
children frequently speak with Ms. C. The Father's parents reside in
Hewlett, which is a one minute drive from his residence. He describes
his parents as extremely close to the children, and he uses his parents
as babysitters for the children if needed. In fact, his father used to
take the children off the bus when the parties lived together.</p>
<p>The Father testified about the children's education and his
involvement. He attends parent-teacher conferences each year for each
child. The Father became aware in April of 2023 that SN applied to The
boarding school in Maryland, and only after the chid had already visited
the school. The first parent listed on this application was the Mother
and the second parent listed on the application was the Mother's current
husband, Mr. A. The Father had to call the school to get a copy of the
application. On the other hand, the Father applied to a high school for
SN in Far Rockaway and listed the Mother's name and contact information
on that application. The Father preferred a local high school, as he
could not imagine SN going away in ninth grade. However, SN wanted to go
away, as the child told him so. The Father learned of the interview at
The boarding school only after the interview took place. When the Father
asked the Mother why she did not tell him, the Mother indicated that
she thought he already knew. If the Father had known about SN's
interview, the Father would have taken him to the interview.</p>
<p>The Father testified about his attempts at extra parenting time. In
the past two years, the Father has asked the Mother for extra parenting
time with the children. He has asked approximately ten times, and the
Mother has refused, generally on all occasions. The Mother never lets
the children stay beyond the time frame for his Thursday dinner. The
Father asked the Mother for Thursday overnights, but she did not agree.</p>
<p>The Father testified about his Thursday parenting time. He places
great value on his Thursday night parenting time with the children. He
considers it to be his "anchor", as it is the only time he can sit down
and talk with and hug his children. It is his opinion that virtual
visits with the children are not a substitute for in-person contact, as
he learns more about the children when they are physically with him.</p>
<p>The Father testified about his reasons for opposing the Mother's
request to relocate. He currently resides in the Five Towns, which is
where the children were born and raised. The children attend specific
Synagogues in the Five Towns. The Rabbis at the Synagogues, and the
people at the Synagogues, all know the children. The travel time between
the Father's residence and the Mother's current residence is
approximately ten to fifteen minutes. If the Mother relocated to
Maryland, the travel time is approximately five hours. If the Mother was
permitted to relocate to Maryland, SS and CS would have to miss part of
school on Friday and Sunday to visit him in New York. Friday and Sunday
schooling is of great importance to the Father, and missing school will
cause stress to be put onto those children. The proposed move will
disrupt consistency. Both SS and CS do not have any friends in Maryland.
The Father believes that the proposed relocation would be unfair to the
kids, as it would require them to be uprooted.</p>
<p>The Father testified about co-parenting with the Mother. Over the
past two years, co-parenting with the Mother has been very difficult, if
not impossible. The Father often does not know about the health or
education of the children until "after the fact". He has no sense that
the Mother wishes to co-parent with him.</p>
<p>The Father testified about what relief he seeks. He seeks a shared
access schedule with the children or, at a minimum, to extend Thursdays
to overnights. On the alternating weekends in which he has the children,
he wants parenting time to begin on Thursday night through Monday
morning, and he would take the children to school.</p>
<p></p><h2><i>Cross Examination — Mother's Counsel</i></h2><p></p>
<p>The Father acknowledged that he submitted an application for SN to
attend the Munsey school, in Rockland County, New York, which is two
hours away. SN, however, was not accepted into the Munsey school. The
Father acknowledged that SN was accepted into The boarding school and
that the child was very excited about this. While the Father testified
that Baltimore, Maryland, is an unsafe city, he acknowledged never
having seen the proposed school and that he has never seen the city of
Baltimore. Likewise, the Father did no independent research about the
city, except for information he obtained within the last month. The
Father acknowledged that during these proceedings, he has not approached
the Mother to discuss any educational issues with respect to their
children. The Father acknowledged that he has no objection to SN
attending The boarding school. While the Father testified about the
duration of travel time from his current residence to Maryland by bus,
train and car, the Father did not consider travel time by airplane.</p>
<p>The Father acknowledged that there is a lot of interaction during
audio calls with the children, and this could continue if the Mother was
permitted to relocate to Maryland. The Father acknowledged being
self-employed as a psychotherapist and that 90% of his "practice" is
tele-health. When the parties were married, because of the Father's
employment and travel attendant thereto, he acknowledged that the Mother
would take care of the "day to day" stuff for the children. The Father
acknowledged that the Mother had no family in New York and that she
moved to New York to marry him.</p>
<p>If the Mother was permitted to relocate to Maryland, the Father would
feel deprived of the ability to "stop by" to see the children. However,
the Father acknowledged that he generally does not currently just
"stop-by" currently. While the Father is concerned about the children
missing school due to Shabbos if the Mother was permitted to relocate to
Maryland, if the Mother brought the children to New York if she were
permitted to relocate, the children would only miss a portion of school
once per month. The Father acknowledged that when the children get sick
on occasion, they, in fact, miss school</p>
<p>The Father acknowledged that if the Mother was permitted to relocate
to Maryland, nothing prevents him from calling the schools or speaking
to the teachers if the children went to school in Maryland. The Father
acknowledged that he has not yet called the school in Maryland. The
Father acknowledged that in years 2019 and 2020, he never filed an
application with the Court alleging that the Mother is not complying
with the parental access provisions of the Stipulation.</p>
<p></p><h2><i>Cross Examination — AFC</i></h2><p></p>
<p>The Father acknowledged that the Mother was the primary person to
take the children to doctor and to take the children to dental
appointments since their physical separation. The Father acknowledged
that the Mother is the primary parent who gets the children up in the
morning. The Father acknowledged that he trusted that the Mother was
taking the children to their annual physical examinations.</p>
<p>Even if the Father learned that the children wanted to relocate to
Maryland with the Mother, he would still oppose the proposed relocation,
as he trusts his own assessments rather than the assessments of his
children. The Father would not trade his hour-and-a-half parenting time
on Thursdays for more time on an overall basis. The Father acknowledged
that the children spend a majority of the time with the Mother.</p>
<p></p><h2><i>Re-Direct Examination</i></h2><p></p>
<p>The Father felt that there was a school in Far Rockaway which was the
best local school for SN, and the Father advised the Mother that he was
filling out an application for the child's attendance in this school.
The Mother does not directly pick-up the phone when the Father calls;
rather, the Mother simply puts the children on the phone right away.
When the parties see each other in person, the Mother looks past him and
"waives him off". The parties and the children have lived in the same
community for the last seventeen (17) to eighteen (18) years. The Father
reiterated that he has attended parent-teacher conferences for each
child for the last four (4) years, and that he attends these conferences
without the Mother.</p>
<p>The Father reiterated that if the children relocate to Maryland, they
must miss Sunday school and Friday for half of the year. The Mother's
proposal of paying for one weekend in Baltimore for the Father to visit
with the children is not sustainable in his opinion as he would go with
his entire family (including Ms. C and her children), and his
step-children may have to miss school. The Father underscored that the
children rarely miss school due to illness. The Father denied begining
learning in school with one of the children just because of the Mother's
relocation application; rather, he did so to help the child and to
spend more time with the child.</p>
<p>The children's opinion regarding relocation is important to know, but
their opinion is not a substitute for his own opinions and judgment.
The Father reiterated that he put the Mother's name on a local Yeshiva
application, while the Mother did not put his name down for the
application to The boarding school. The Father finds that The boarding
school is far away, and objects to the proposed relocation inasmuch as
five (5) hours of travel time is a long way to travel. The Father
reiterated that while he is ambivalent about The boarding school, SN is
excited about it and he will not object to SN attending same.</p>
<p></p><h2><i>Re-Cross Examination — Mother's Counsel</i></h2><p></p>
<p>The Father acknowledged that he has not called the pediatrician to
find out when the children's annual physicals exams were. The Father
acknowledged having the right to make those inquiries. The Father
acknowledged not having asked the Mother about the children's dental
appointments.</p>
<p></p><h2><i>Re-Cross Examination — AFC</i></h2><p></p>
<p>The Father acknowledged that the children were aware of the proposed
relocation before the Court vacated the order prohibiting them from
discussing it, as the Father told the children something along the lines
of "I don't want you moving so far away from me".</p>
<p></p><h2>C. In-Camera</h2><p></p>
<p>A separate <i>in camera</i> was held with each of the parties' children on July 21, 2023, pursuant to <a href="https://scholar.google.com/scholar_case?case=8524482975639855619&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Lincoln v. Lincoln,</i> 24 NY2d 270 (1969)</a>.
The Court met with each child individually and had a full opportunity
to hear from them. The Court has thoroughly considered the statements
made by the children and has afforded those statements the appropriate
weight having considered their ages and level of maturity.</p>
<p></p><h2>DISCUSSION & ANALYSIS</h2><p></p>
<p></p><h2>RELOCATION TO MARYLAND</h2><p></p>
<p>The only absolute in the law governing custody of children is that there are no absolutes. <a href="https://scholar.google.com/scholar_case?case=8387738574013232146&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Friederwitzer v. Friederwitzer,</i> 55 NY2d 89 (1982)</a>; <a href="https://scholar.google.com/scholar_case?case=12104675717018467471&q=sg+v+mg&hl=en&as_sdt=4,33"><i>McDermott v. Berolzheimer,</i> 210 AD2d 559 (3d Dept. 1994)</a>.
Disputes involving custody and visitation are acknowledged to be among
the most difficult the courts are called upon to resolve, for they so
deeply affect the lives of children and the parents who love them. <a href="https://scholar.google.com/scholar_case?case=17223088681711428179&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Daghir v. Daghir,</i> 82 AD2d 191 (2d Dept. 1981)</a>. Courts must be vigilant to assure that children are fully protected and their best interests secured. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=11645660211528941761&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Newton v. McFarlane,</i> 174 AD3d 67 (2d Dept. 2019)</a>.
Each case presents a unique set of facts and thus a case-by-case
analysis is required to determine if the requisite showing has been made
to justify disrupting the relationship of the noncustodial parent and
the child. <a href="https://scholar.google.com/scholar_case?case=17555977061976906214&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Bonfiglio v. Bonfiglio,</i> 134 AD2d 426 (2d Dept. 1987)</a>.
Of course, as the Court of Appeals noted "... [a]ny court in
considering questions of child custody must make every effort to
determine what is for the best interest of the child, and what will best
promote its welfare and happiness..." <a href="https://scholar.google.com/scholar_case?case=7103578007220629713&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Eschbach v. Eschbach,</i> 56 NY2d 167 (1982)</a>.
There remains an unfortunate truth of a family that is the byproduct of
divorce: that family, once broken by divorce, cannot be put back
together in precisely the same way. <a href="https://scholar.google.com/scholar_case?case=12709230432196750741&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Tropea v. Tropea, infra</i></a><i>.</i>
The Court takes the time to remind these parties that their children
are not chattel, and this Decision and Order is made with a view towards
what serves the best interests of the <i>children</i> (<i>see generally </i><a href="https://scholar.google.com/scholar_case?case=4222424205437087196&q=sg+v+mg&hl=en&as_sdt=4,33"><i>H.K. v. R.C.,</i> 72 Misc 3d 909 (Supreme Court New York County 2021)</a>), and <i>not</i>
the best interests of either parent. With those initial sentiments in
mind, this Court is called upon to determine whether or not the Mother
should be permitted to relocate with the children to another State.</p>
<p>The parties have an underlying Stipulation which contains provisions
regarding custody and parenting time of their children. Since the Mother
seeks to relocate to Maryland with the children, she, in effect, seeks a
modification of the Judgment. 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. <a href="https://scholar.google.com/scholar_case?case=12345304566708736618&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Assad v. Assad,</i> 200 AD3d 831 (2d Dept. 2021)</a>; <a href="https://scholar.google.com/scholar_case?case=8077850253580661092&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Greenberg v. Greenberg,</i> 144 AD3d 625 (2d Dept. 2016)</a>. That change in circumstances should reflect <i>a real need for change</i> to ensure the best interests of the child. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=5949981153519968901&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Cole v. Nofri,</i> 107 AD3d 1510 (4th Dept. 2013) (Martoche, J., dissenting)</a>. The best interests of the child are determined by a review of the totality of the circumstances. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=5164563014583525543&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Paige v. Paige,</i> 202 AD3d 794 (2d Dept. 2022)</a>.
In considering the totality of the circumstances, the Court should
consider what is in furtherance of the child's welfare and happiness. <i>See generally Matter of </i><a href="https://scholar.google.com/scholar_case?case=15638064538724696134&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Bhanhattie H. v. Roxanne H.,</i> 56 Misc 3d 1040 (Family Court Queens County 2017)</a>.</p>
<p>A relocation is accepted as a change in circumstances, requiring the
parent seeking the move to demonstrate that relocating the children is
in their best interests. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=1323700333298869079&q=sg+v+mg&hl=en&as_sdt=4,33"><i>William V. v. Bridgett W.,</i> 182 AD3d 636 (3d Dept. 2020)</a>.
A parent seeking leave to relocate with a child bears the burden of
establishing by a preponderance of the evidence that the proposed move
would be in the child's best interests. <a href="https://scholar.google.com/scholar_case?case=17317902940070055987&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Schwartz v. Schwartz,</i> 186 AD3d 1742 (2d Dept. 2020)</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=6619195303600180351&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Hall v. Clas,</i> 144 AD3d 801 (2d Dept. 2016)</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=6034512026805899428&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Bailey v. Ayoub,</i> 203 AD3d 1043 (2d Dept. 2022)</a>.
The Court must consider each relocation request on its own merits with
due consideration of all the relevant facts and circumstances and with
predominant emphasis being placed on what outcome is most likely to
serve the best interests of the child. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=7213386538598379315&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Louie v. Plissner,</i> 174 AD3d 607 (2d Dept. 2019)</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=8074443262849889024&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Williams v. Jenkins,</i> 167 AD3d 758 (2d Dept. 2018)</a>.</p>
<p>The seminal case concerning a parent's right to relocate with children is <a href="https://scholar.google.com/scholar_case?case=12709230432196750741&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Tropea v. Tropea</i></a><i>.</i>
Decided by the Court of Appeals in 1996, it attempted to recognize the
juxtaposition of the interests of a custodial parent who wishes to move
away are pitted against those of a noncustodial parent who has a
powerful desire to maintain frequent and regular contact with the child.
<a href="https://scholar.google.com/scholar_case?case=12709230432196750741&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Tropea v. Tropea,</i> 87 NY2d 727 (1996)</a>. <i>Tropea</i> enumerated factors that courts considering relocation applications should consider:</p>
<blockquote>Rather, we hold that, in all cases, the courts should be
free to consider and give appropriate weight to all of the factors that
may be relevant to the determination. These factors include, but are
certainly not limited to each parent's reasons for seeking or opposing
the move, the quality of the relationships between the child and the
custodial and noncustodial parents, the impact of the move on the
quantity and quality of the child's future contact with the noncustodial
parent, the degree to which the custodial parent's and child's life may
be enhanced economically, emotionally and educationally by the move,
and the feasibility of preserving the relationship between the
noncustodial parent and child through suitable visitation arrangements.
In the end, it is for the court to determine, based on all of the proof,
whether it has been established by a preponderance of the evidence that
a proposed relocation would serve the child's best interests.</blockquote>
<p><i>Tropea,</i> 87 AD2d 727 (1996). No one factor is determinative because the court must review the totality of the circumstances (<i>see Matter of A.P. v. J.G.,</i>
69 Misc 3d 1216(A) (Family Court Bronx County 2020)), and no factor
should be given such disproportionate weight as to predetermine the
outcome (<i>see Matter of </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=4589622666245770829&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Caruso v. Cruz,</i> 114 AD3d 769 (2d Dept. 2014)</a>). The Court likewise must consider the position of the attorney of the children. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=10436759389071435777&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Davis v. Ogden,</i> 109 AD3d 539 (2d Dept. 2013)</a>.
Additionally, the impact of the move on the relationship between the
child and the noncustodial parent will remain a central concern. <i>Matter of Caruso,</i> 114 AD3d at 771. The Court has an obligation to make an objective and independent evaluation of the circumstances. <a href="https://scholar.google.com/scholar_case?case=2381311298371283509&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Rizea v. Rizea,</i> 218 AD3d 807 (2d Dept. 2023)</a>. Nonetheless, the rights and needs of the children must be accorded the greatest weight. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=6311335422422422112&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Alaire K.G. v. Anthony P.G.,</i> 86 AD3d 216 (1st Dept. 2011)</a>.</p>
<p>Balanced against the aforesaid, the Court must also consider the
relationship between the children and the noncustodial parent, as the
Court must be concerned with the impact of the move on the relationship
between the child(ren) and the noncustodial parent, as it is
well-established that children derive an abundance of benefits from the
mature guiding hand and love of a second parent. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=6311335422422422112&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Alaire K.G. v. Anthony P.G.,</i> 86 AD3d 216 (1st Dept. 2011) (Saxe, J., dissenting)</a>. Indeed, a child's best interest is protected by ensuring the fullest possible relationship with both parents. <a href="https://scholar.google.com/scholar_case?case=1391168862943589663&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Nimkoff v. Nimkoff,</i> 18 AD3d 344 (1st Dept. 2005)</a>.
Consideration of whether the relocation of the child would negatively
affect the fundamental right of reasonable access of the parent left
behind clearly is essential. <a href="https://scholar.google.com/scholar_case?case=11333463531259229529&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Bodrato v. Biggs,</i> 274 AD2d 694 (3d Dept. 2000)</a>.
The law requires that the interests which might justify such a
relocation by the custodial parent be balanced against the noncustodial
parent's fundamental human right to frequent visitation and, most
significantly, by the best interests of the children. <a href="https://scholar.google.com/scholar_case?case=8276614203502293273&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Rybicki v. Rybicki,</i> 176 AD2d 86 (2d Dept. 1991)</a>.</p>
<p></p><h2><i>Plaintiff's Reasons for Seeking the Move</i></h2><p></p>
<p>The Court considers the Plaintiff's reason(s) for seeking the move to
be both familial and economic in nature, and to enhance the lives of
the children. In <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=1474976793747270683&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Amber GG. v. Eric HH</i></a><i>.,</i>
the Third Department reversed family court's denial of an application
by the mother therein to relocate to Florida, finding, in part, that
"... [t]aken as a whole, the mother's testimony demonstrated ... that
the mother's reasons for wanting to relocate were familial and economic
and that the proposed relocation would likely enhance the lives of the
mother and the child[ren] economically and emotionally..." <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=1474976793747270683&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Amber GG. v. Eric HH.,</i> 217 AD3d 1103 (3d Dept. 2023)</a>.</p>
<p>If the Mother were permitted to relocate to Maryland, the Court finds
that the lives of the children would be enhanced. The Court finds that
the children will have an appropriate and suitable living abode in
Maryland, and that they would be able to live with their step-siblings.
As elicited on direct examination of Mr. A (who testified credibly):</p>
<blockquote>Q: Now, with regard to your residence in Silver Spring,
describe the house or take us through a verbal virtual tour of your
home?</blockquote>
<blockquote>A: S and I, we were together on the decision for the
purchase. It's a five bedroom single-family home in a Washington D.C.
suburb. The kids, they've got rooms there. Her kids have rooms as well.
They've got beds. Furniture. The girls sleep together. My son Y who's
four sleeps by himself. And then SN and SS, they have their own room,
bunk beds.</blockquote>
<p>In this regard, Mr. A's testimony credibly painted a colorful picture
of the home in which the G children would be living in. Of course, they
would share that home with their step-siblings. The Court finds that
the space and the sleeping arrangements to be appropriate for the ages
of the children herein, and that living with their step-siblings would
enhance the lives of these children. The Mother testified on direct
examination with respect to her desire to relocate:</p>
<blockquote>Q: Can you discuss your living arrangement currently with Mr. A a little bit further?</blockquote>
<blockquote>A: Yes. So, when I have my children for the weekend he
drives up on Friday or he takes the train and he goes into Penn Station
and then he'll take the train from Penn Station to Far Rockaway or he
will just drive straight. He comes in before Shabbos. He is with us
until usually Wednesday. Wednesday evening he leaves, sometimes Tuesday
he leaves. And then I, on Friday, depending on when Shabbos starts,
either I drop off my kids and I work from the car as I drive to
Maryland, or if Shabbos is later then I pick up the kids from school, I
make sure they're all settled, and then I bring them over to their
father's house and then I go straight to Silver Spring at around 12
o'clock and then I drive and I pick up our chidren by 6 o'clock, and
because Mike is staying in Silver Spring and I'm coming back here and
then we don't see each other until Friday.</blockquote>
<blockquote>Q: Now, in what way or ways has you and he maintaining two
separate residences in two separate states impacted your relationship
and your ordinary daily life?</blockquote>
<blockquote>A: So for the time that we're together we're a married
couple, and then the time of the week that we're not its like a back to
single-mom-hood and we, you know — CS is always like, I need to Facetime
abba the minute she comes home and the boys are asking, "Where is
abba?" "Where is abba?" and we're both for that week single parents
again.</blockquote>
<p>The Mother credibly convinced this Court that the proposed relocation
would be a betterment and enhancement of the emotional state(s) of the
chid(ren). Without objection or contradiction, the Court notes that it
appears from the testimony (<i>see supra</i>) that these children
unilaterally, and of their own volition, refer to Mr. A as "abba",
which, in Hebrew, means "Father". The testimony of the Mother did not at
all come off as that the children are attempting to replace the Father
with Mr. A. Rather, to the Court, this credible testimony demonstrated
an extreme level of comfort and security with Mr. A. The evidence and
testimony at the Hearing has also convinced this Court that the
relationship of the G children and Mr. A's children are akin to bonded
step-siblings. The Court certainly finds that the G children living with
their step-siblings enhances their lives. In addition, the Court
carefully and closely examined the Mother during her testimony about her
current living arrangements with Mr. A. She credibly testified that it
is, in effect, her desire to relocate so that she can live permanently
with Mr. A, instead of spending extended periods of time apart from the
man who is her husband. The Court also finds tangentially that these
childrens' lives would be enhanced by the Mother being able to
permanently live with Mr. A. The Mother's emotional struggle in being
separated part of the time from Mr. A was evident, and this Court does
not wish to adversely affect the emotional states of these children by
keeping their Mother separated from her husband. Not only that, but this
Court considers that factor in conjunction with the fact that the
Mother always has been, is and remains the primary caretaker of these
children, who spend a majority of time with the Mother.</p>
<p>In furtherance of that, the Mother painted a difficult picture surrounding the socialization of these children:</p>
<blockquote>Q: Now, you mentioned socialization for your children being
something that was a thought process to you at the time you made a move
with regard to each of your children individually; how would you
describe them socially?</blockquote>
<blockquote>A: SN, he just moved into eighth grade so he's transitioning
to those boys, but he's fine. He doesn't have any close friends. I
think he's kind of gambling between the seventh graders and eight [sic]
graders right now. He used to have a close friend, that was in seventh
grade, but they kind of lost touch.</blockquote>
<blockquote>SS doesn't have any close friends. He doesn't like playing
with anyone at their house. He is like one of the boys and all the
teachers have always told me that, no, he'll play with the boys, but he
doesn't have any close friends.</blockquote>
<blockquote>CS, she's also — she's struggling with close friends. No one
calls her for play dates. On Friday afternoon we call together to
arrange play dates for Shabbos afternoon and everyone is always busy
with somebody else, so it's hard. I don't think the class she's in right
now is the right class. She's of the age that she should have a close
friend and she just doesn't so something needs to change with her.</blockquote>
<p>The Court found the Mother's testimony sincere and remarkable in this
respect. This Court carefully observed the Mother during this testimony
and her tone and demeanor was one of outright concern for the social
status of these children. Unfortunately, these children do not appear to
have any close friends, if any friends at all. While the Father
testified on direct examination that the children have friends, there
was insufficient evidence in the record to indicate to the Court who
those friends are, how much time the children spend with those friends,
and what the children do when with those friends. The Court finds that
by granting the proposed relocation to Maryland, not only would it not
disrupt any of the children's existing social relationships, but it will
likely serve as a vehicle for enhancement thereof. These children may
start afresh in new schools with the ability to make new friends (which
they have not been able to do). Additionally, the Court notes that Mr. A
testified that his children from his first marriage are with him for a
substantial period of time. Notably, as elicited on direct examination:</p>
<blockquote>Q: Can you briefly describe it for the Court when the children are with you?</blockquote>
<blockquote>A: Sure. So they are with me about 40 percent of the time as
per the agreement. It comes up to a little bit more than that in
practice. The children, they live with me. When they are with me they
have their entire lives out of my house, everything is there, all their
clothes, everything is based out of my house.</blockquote>
<p>By granting the proposed relocation, the subject children will have
the additional benefit of spending nearly forty percent of the time with
Mr. A's siblings, who this Court finds can help better enhance the
socialization of the subject children.</p>
<p>The Mother's reasons for seeking the relocation is a factor that weighs in favor of granting the request for relocation.</p>
<p></p><h2><i>Defendant's Reasons for Opposing the Move</i></h2><p></p>
<p>The Father testified on his direct examination as follows:</p>
<blockquote>Q: Can you explain the value that you place upon the weekly Thursday dinners?</blockquote>
<blockquote>A: Yes. For me it — the value that I place on it is that it is the <i>touchstone and the anchor</i>
where even on the weeks that I don't have them for the weekend, it's
the only time I could see them in person and spend time with them and
talk with them, hug them and just — and be with them. <i>So it's of essential importance.</i></blockquote>
<blockquote>Q: And would that be fulfilled with weekly virtual chats instead?</blockquote>
<blockquote>A: No, it would not.</blockquote>
<blockquote>Q: Why not?</blockquote>
<blockquote>A: Well, first of all, I find out a lot more about their
lives when they are actually by me. When they are speaking to me from
their mother's house, they are understandably more circumspect and just
kind of talking on a more kind of polished, external level. Everything
is good, yeah.</blockquote>
<p>But when they're by me, they open up. I find out things about them, I
see their faces. I get to touch them, they get to touch me. There is a
certain quality that's hard to put your finger on that I think most
parents and children can attest to is essential to being with your
children in person.</p>
<p>But the Father's words, coupled with his actions, in this instance,
are incongruous. To explain: the Father, in effect, opposes the Mother's
proposed relocation because, in part, the relocation would prevent him
from exercising his ninety (90) minute parenting time on Thursdays. Yet,
his actions in agreeing to permit SN to attend dorm at school in
Maryland is at variance with his words inasmuch <i>as the Father would miss out on his weekly Thursday parenting time with SN</i> if the Court were to deny the Mother's application for relocation.</p>
<p>The Court did not find persuasive the Father's argument that Maryland
is, in effect, not a "safe" place or that the Baltimore area is not a
"safe" city inasmuch as there was no evidence provided at the Hearing to
demonstrate the unsafeness of Maryland. The Court appreciates the
Father's argument that, in effect, his entire new family, including Ms. C
and her children, would have to travel to Maryland with him once a
month. However, the Court does not find that it is a bar to the proposed
relocation. Sometimes, however, doing something that is in the best
interests of all of your children involves making a sacrifice or
sacrifices for the betterment of those children. While the Court
certainly finds no reason why Ms. C and her children cannot accompany
the Father on his alternating weekend visitation in Maryland (<i>see infra</i>), the Court finds this reason to be unpersuasive.</p>
<p>The Court also appreciates the Father's argument that, if the Mother
is permitted to relocate, during one of the alternating weekend visits,
some of the children may miss a few hours of school. The Court does not
find this to be a bar to the proposed relocation either. While the Court
emphasizes the importance of schooling, the Court does not find that a
few hours once per month will be so detrimental to the educational needs
or the schooling of the children. The Mother is, of course, strongly
cautioned to minimize the amount of time that the children must be taken
out of school early on those Fridays when transporting the children to
New York. While the Father testified that missing school will cause
stress to be put onto those children, the Court is unsure if that stress
will be thrust upon those children, and, the Court finds that the
proposed relocation to Maryland will outweigh any stress that the
children may experience by missing a few hours of school only once per
month.</p>
<p>With respect to the Father's argument that the proposed relocation,
if granted, will uproot the children from the Five Towns where they have
lived for years, the Court has considered same, and does not find it to
be a bar to the proposed relocation. While the children may have lived
here for many years, any roots that the children may have had in this
community has not significantly helped or improved their social status.
With respect to the children's attendance at religious institutions, the
children can certainly find new religious institutions to be a part of
and nonetheless remain in contact with any religious advisors that they
have may here. Another consideration: the Father consented to send SN to
a school in Maryland, rather than have him attend a school here in New
York. In furtherance thereof, the Father has effectively consented to
and allowed the uprooting of SN from New York to not only attend school,
but to live at school out of State as well.</p>
<p>The Father's reasons for opposing the relocation is a factor that does not weigh against the request for relocation.</p>
<p></p><h2><i>Quality of the Relationship with the Mother</i></h2><p></p>
<p>To this Court, there is no question that the Mother has been the
primary caretaker of these children since their birth. This is
underscored by the Father's voluntary vacatur from the marital residence
before the parties signed the Stipulation and the Father's agreement to
designate the Mother as the primary physical parent of these children
as set forth in the Stipulation. There is no dispute that the Mother
continues to be the primary caretaker of these children, and the Father
effectively admitted and conceded same at the Hearing. The evidence and
testimony at the Hearing established to the satisfaction of this Court
that the children are significantly bonded to their Mother.</p>
<p>The quality of the relationship with the Mother is a factor that weighs in favor of granting the request for relocation.</p>
<p></p><h2><i>Quality of the Relationship with the Father</i></h2><p></p>
<p>The testimony at the Hearing leads the Court to the conclusion that
while the Father is one who generally visits with the children and
exercises his parenting time, he is, in effect, only a visiting parent.
While there is nothing wrong with being a visiting parent, the quality
of the relationship with the Father is not one of being an active
parent, and is not one that would prevent a relocation. For instance,
the testimony to this Court established that when the Mother suspected
the Father of using Adderall inappropriately, she unilaterally elected
to truncate and relegate the Father's access to that of supervised
parenting time. The Father did not seek to enforce and/or expand his
parenting time until <i>after</i> the Mother filed her application in May of 2021 (<i>see infra</i>). What is more, instead of exercising that time, albeit in a supervised setting, he elected to see the children <i>in his car.</i> In sum, the Father viewed a few short minutes of time with his children <i>in his car</i>
to be quality time. While that may have been quality time to the
Father, it does not necessarily mean that it was quality time to the
children, nor does it mean that it was in the best interests of the
children. Indeed, while these children love their Father, these children
will certainly continue to love him, and continue to visit with him, if
they live in Maryland. The Father's mere reactive nature relative to
his parenting time prior to court intervention is consistent with that
of simply a visiting parent. Plain and simply, the Father can still
visit with the children if they were to live in Maryland.</p>
<p>The quality of the relationship with the Father can still be preserved (<i>see infra</i>) in spite of the relocation, and, therefore, this is not a factor that militates against the request for relocation.</p>
<p></p><h2><i>Impact of the Move on the Quantity and Quality of the Children's Future Contact with the Father</i></h2><p></p>
<p>As stated aforesaid, the Court does not find that the proposed
relocation to Maryland will negatively or adversely affect the quantity
and quality of the Father's future contact with the children. <i>Quantitatively,</i>
the Father will maintain his alternating weekend parental access with
the children. In fact, the Court will be expanding his alternating
weekend access so that on the alternate weekend that he is visiting the
children in Maryland, his weekend will start on Thursday instead of
Friday, and conclude on Monday morning, instead of Sunday night, which
gives him one Thursday overnight per month and one Sunday overnight per
month, something he does not have under the existing Stipulation. The
Court notes that while the three other Thursdays will not be occurring
on a weekly basis, the Court will make this up to the Father by giving
him an additional ten (10) consecutive days in the summer months with
the children. <i>Qualitatively,</i> irrespective of whether or not the
Father is exercising parenting time in Maryland or in New York, his time
with the children does not have to change. He can still help the
children study, he can still eat Kosher food with them, he can still
hold conversations with them, he can still touch and hug them, and he
can still partake in activities with them, such as playing basketball or
hiking.</p>
<p>The impact of the move on the quantity and quality of the children's
future contact with the Father does not weigh in favor of denying the
proposed relocation.</p>
<p></p><h2><i>Degree to Which the Mother's and Children's Lives may be Enhanced Economically, Emotionally and Educationally by the Move</i></h2><p></p>
<p>The Court finds that the proposed relocation will enhance the
Mother's life and the lives of the children economically, emotionally
and educationally. <i>Economically,</i> the Court notes that Mr. A
testified that he is employed as a data engineer with FINRA earning
approximately $185,000.00 per annum. The testimony at the Hearing also
revealed that the Mother is employed as a registered investment advisory
with MWM Group earning anywhere between $120,000.00 to $150,000.00 per
annum. The Mother is earning more now then when she was at the time of
the Judgment, and it does not appear that her employment will be
adversely affected if she is permitted to relocate, as she testified
that she works remotely. The Court notes that the underlying Stipulation
provides, in sum and substance, that the Father is to pay $900.00 per
month as and for child support for the first three years and then the
sum of $1,100,00 per month as and for child support. In the Stipulation,
the Father's gross income was $50,000.00 per annum. The Court notes
that the $900.00 per month sum was a slight downward deviation from the
presumptive amount of child support pursuant to the Child Support
Standards Act.</p>
<p><i>Emotionally,</i> the Court finds that the Mother's life and the
lives of the children will be enhanced. As to the Mother, she will no
longer have to spend consecutive days away from Mr. A and have the
constant back-and-forth feeling of being married to being a single
mother. As to the children, while they will be able to now live with Mr.
A (who they refer to as "abba"), they will still nonetheless be
maintaining just as much, if not more, of their parental access schedule
with their Father (<i>see infra</i>). Visitation is a joint right of the noncustodial parent and of the child. <i>See generally </i><a href="https://scholar.google.com/scholar_case?case=375601747999320060&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Weiss v. Weiss,</i> 52 NY2d 170 (1981)</a>.
Likewise, the proposed relocation will enable SS and CS to live close
to SN inasmuch as he will be attending school in Maryland <i>on consent of the Father (see infra</i>).</p>
<p><i>Educationally,</i> the Court likewise finds that the lives of the children will be advanced. The parties' Stipulation provides:</p>
<blockquote>Religious Upbringing. The parties agree to continue to raise
the Children in the Jewish Orthodox tradition and philosophy, including
without limitation, observing the Sabbath, Jewish holiday observance,
and adherence to the laws of Kashrut (kosher food), which shall be
followed in the parties' residences while the children are present. The
parties further agree to follow all of the rules of the school attended
by the Children when the Children are in his/her care. In the event that
the parties cannot reach an agreement with regard to a religious
decision, the parties shall consult with Rabbi Reich with an eye towards
mediating and resolving their difference of opinion. Any religious
school issues shall be mediated by Rabbi Sitnick.</blockquote>
<p>The Court finds that the Mother will be able to maintain her home in
Maryland in accordance with the tenants of her religion and pursuant to
the Stipulation, and that she will be able to follow the rules of the
school in her home. Additionally, SS and CS will be able to attend
schools in Maryland consistent with their religious upbringing.</p>
<p>The degree to which the Mother's and children's lives may be enhanced
economically, emotionally and educationally by the move weighs in favor
of the proposed relocation.</p>
<p></p><h2><i>Feasibility of Preserving the Relationship Between the Father and Child Through Suitable Visitation Arrangements</i></h2><p></p>
<p>Here, the proposed relocation to Maryland will not disrupt the
Father's alternating weekend parental access with the children. In fact,
not only will the Court be preserving the Father's access with the
children, it will, in its totality, be expanding his access (<i>see infra</i>).
That will include maintaining his alternating weekend schedule,
expanding his parental access in over the summer, and not completely
eliminating his Thursday weekly parental access by giving the Father one
Thursday overnight per month when he is visiting the children in
Maryland (<i>see infra</i>).</p>
<p>Inasmuch as the Court is expanding the Father's parental access with
the children, this Court finds that it is able to feasibly preserve the
relationship between the Father and the children by giving the Father
more quality time with the children, which the Court finds weighs in
favor of granting the proposed relocation.</p>
<p></p><h2><i>Position of the Attorney for the Children</i></h2><p></p>
<p>The Attorney for the Children supports the Mother's application
seeking permission to relocate to Maryland. While not necessarily
determinative, the child[ren]'s expressed preference is some indication
of what is in his or her best interests and, in weighing that factor, a
court must consider the age and maturity of the child[ren]. <a href="https://scholar.google.com/scholar_case?case=15484456241132575839&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Matter of David v, LoPresti,</i> 176 AD3d 701 (2d Dept. 2019)</a>.
While the AFC in her written summations has stated that "... all three
of the children have different opinions but would prefer those opinions
not be shared with their parents...", the AFC nonetheless sets forth a
position that the Mother should be permitted to relocate with the
children. The Court has therefore given the position of the AFC its
appropriate weight. <i>See also </i><a href="https://scholar.google.com/scholar_case?case=10436759389071435777&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Davis v. Ogden,</i> 109 AD3d 539 (2d Dept. 2013)</a> (affirming family court's order granting permission to relocate to Florida which considered, <i>inter alia,</i> that the position of the attorney for the children was in favor of the relocation).</p>
<p>Inasmuch as the position of the AFC is in favor of relocation, the
Court finds this factor to weigh in favor of granting the relocation.</p>
<p></p><h2><i>Other Factors Considered by the Court</i><sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[4]" name="r[4]">[4]</a></sup></h2><p></p>
<p>In addition to the aforesaid <i>Tropea</i> factors, the Court has considered other factors (<i>see infra</i>).</p>
<p><i>First,</i> the Father's failure to request custody as an alternative to the proposed relocation. In <i>Mathie v. Mathie,</i>
the plaintiff therein, who was the physical custodian of the child
therein, remarried and desired to move with the child to New Jersey. <a href="https://scholar.google.com/scholar_case?case=2620953872037999587&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Mathie v. Mathie,</i> 65 AD3d 527 (2d Dept. 2009)</a>. The hearing court, after a hearing, denied the application to relocate. <a href="https://scholar.google.com/scholar_case?case=2620953872037999587&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Mathie,</i> 65 AD3d at 529</a>. The Second Department reversed and granted the application to relocate, noting, in part, that "... <i>[s]ignificantly,</i> the defendant <i>did not seek custody</i> of [the child therein] as an alternative to the plaintiff's relocation application...." <i>Id.</i>
(emphasis added). Here, the Court notes that the Father did not seek
custody of the children as an alternative to the Mother's application
seeking to relocate to Maryland. Rather, and notably, the Father only
sought to expand his access on June 16, 2021,<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[5]" name="r[5]">[5]</a></sup> which, tellingly, was <i>only after</i> the Mother interposed her application for, <i>inter alia,</i>
sole custody, supervised access and drug testing. To the Court, his
conduct was, at best, that of a reactive parent, instead of that of a
proactive parent. In furtherance of the aforesaid, the Father's conduct
after the Mother initiated Court intervention is consistent with his
conduct undertaken both during the marriage and after the parties'
executed the Stipulation: that of a parent who simply defers to the
decisions of and reacts to the other parent, as well as that of a
visiting parent. While the Court does not begrudge the Father for being
reactive, his conduct — even if tacitly taken — leads this Court to the
conclusion that his opposition to the Mother's proposed relocation is
only in his interests, and not the interests of the children. The
Father, in effect, deferred a majority of the decisions for the children
and caretaking of the children to the Mother. For instance, as elicited
on cross-examination of the Father by the AFC:</p>
<blockquote>Q: Would it be fair to say through no fault of your own that
S has basically been the primary person responsible for bringing the
children to the doctor?</blockquote>
<blockquote>A: Yes.</blockquote>
<blockquote>MS. MARKFIELD: Can we have a timeframe? Always?</blockquote>
<blockquote>MS. LATZMAN: Since the separation.</blockquote>
<blockquote>A: Repeat the question.</blockquote>
<blockquote>Q: Since you have been separated, would it be fair to say
that S has been primarily responsible to bring the children to the
doctor?</blockquote>
<blockquote>A: Yes, she has.</blockquote>
<blockquote>Q: And to bring the children to the dentist?</blockquote>
<blockquote>A: Yes, she has.</blockquote>
<blockquote>Q: And to make sure that the children get up every morning and get to school?</blockquote>
<blockquote>A: They are usually by her, so yes.</blockquote>
<blockquote>Q: So the children spend most of their time with their mother in her home, correct?</blockquote>
<blockquote>A: Correct.</blockquote>
<blockquote>* * *</blockquote>
<blockquote>Q: So you kind of rely on her to do all of those things, didn't you?</blockquote>
<blockquote>A: I knew she was doing it. I trusted she was doing it.</blockquote>
<p><i>Second,</i> the Father's habitual deferral to the Mother's
decisions. The testimony at the Hearing was replete with testimony from
the Father that the Mother, in effect, made decisions without him. For
example, and in sum and substance, the Mother unilaterally decided that
his contact with the children should be supervised, that she did not
tell the Father about the interview at the Baltimore School, that she
let her new husband take the child to the interview at the Baltimore
school rather than provide him with the opportunity to do so, that she
did not list the Father's appropriate contact information on the
application for the interview at the Baltimore school, and so on. The
Court highlights this conduct not to countenance it, but to make
critical point: <i>that the Father, despite all of these complaints, and
despite all of the Mother's unilateral actions, some of which may have
been in violation of the parties' Stipulation, did not seek custody of
these children.</i> Once again, the Father's inaction and reactive nature confirms the narrative: that he is simply visiting parent (<i>see supra</i>).
While there is nothing wrong with being a visiting parent, this Court
can maintain his status as a visiting parent — and even expand it — even
in spite of granting the Mother permission to relocate. The Court takes
this time to remind the Mother of her obligations under the Stipulation
regarding decision-making.</p>
<p><i>Third,</i> the Father's consent to SN attending school in Maryland
and this Court's reluctance to separate these siblings from one
another. The Father acknowledged that he is <i>consenting</i> to SN
attending school in Baltimore, Maryland, which is in the same state
where the Mother seeks to relocate to. Yet, he opposes the relocation of
the other two children to Maryland. So, in effect, he consents to one
child being in Maryland, but not the other two. Ostensibly, therefore,
SN would be living in and going to school in Baltimore while the other
two children would be here living in New York. The Father's consent to
SN attending school in Baltimore, Maryland, is a factor in favor of
permitting a relocation. Courts should be reluctant to separate
siblings. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=9650556996723071286&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Nikolic v. Ingrassia,</i> 47 AD3d 819 (2d Dept. 2008)</a>; <i>see also Matter of </i><a href="https://scholar.google.com/scholar_case?case=8467769678446456299&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Lightbody v. Lightbody,</i> 42 AD3d 537 (2d Dept. 2007)</a>.
Here, the evidence and testimony at the Hearing establishes that the
children enjoy a close relationship with one another, for instance, that
they pray together, attend the Synagogue together, play board games
together, play basketball together, and partake in other activities
which siblings often partake in. This Court would find it contrary to
the best interests of these children to separate them and have one of
them live in one state, and two of them living in another state. In
fact, the Father's position makes it impossible to separate these
siblings, as he has not asked for custody of the children as an
alternative to the Mother's proposed relocation. This Court has, in this
regard, carefully considered the testimony of the parties surrounding
each child's socialization and the Court believes that separating them —
in light of the <i>de minimis</i> and insubstantial friendships they have with others — would do more harm to their socialization than good.</p>
<p><i>Fourth,</i> leaving SN in Maryland at school without a parent
nearby. The Father's consent to SN attending school in Maryland but
opposition to the Mother's request for relocation creates a quandry:
this would effectively force SN to attend school out-of-state without a
parent living in close proximity thereto. The indisputable evidence at
the Hearing established that the Mother remains the primary caretaker of
these children, and if the Court were disinclined to grant the
relocation, it would effectively force SN to be separated from his
Mother. Children often times lean on their primary caretaker in the
event of a medical, physical or emotional emergency, and to have the
Mother living far away in a distant state without that safety net for
that child would be contrary to his best interests, and this Court
declines to countenance such a result.</p>
<p><i>Fifth,</i> the parties' underlying Stipulation and Judgment is a
byproduct of a voluntary agreement between the parties that gave the
Mother primary physical custody of the children. The Court initially
notes that the underlying Stipulation<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[6]" name="r[6]">[6]</a></sup> provides the following:</p>
<blockquote>The parties agree that the MOTHER and FATHER shall share
joint legal custody of the Children. The MOTHER shall be the primary
residential custodial parent, subject to the FATHER's parenting rights
as provided herein.</blockquote>
<p>The Judgment<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[7]" name="r[7]">[7]</a></sup> provides that the "... Plaintiff/Mother <i>having physical custody</i> of the Children subject to the Defendant/Father's parenting time..." The Court has considered that in 2019, the parties <i>agreed</i>
that the Mother would be the primary residential parent of the
children. When the parties have entered into an agreement as to which
parent should have custody, priority should be given to the custody
arrangement reached by voluntary agreement. <a href="https://scholar.google.com/scholar_case?case=3530020122226493007&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Prete v. Prete,</i> 193 AD2d 804 (2d Dept. 1993)</a>; <i>see also Matter of </i><a href="https://scholar.google.com/scholar_case?case=8774076072387384367&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Russell v. Russell,</i> 72 AD3d 973 (2d Dept. 2010)</a>. This Court has given the appropriate weight to the fact that the parties <i>voluntarily agreed</i>
that the children would reside principally with the Mother, and that
the children continue to principally reside with the Mother.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#[8]" name="r[8]">[8]</a></sup></p>
<p><i>Sixth,</i> Mr. A, who is no substitute for the Father, acts
appropriately with the subject children. The Court had the opportunity
to observe his demeanor, tone and sincerity. The Court found him to be
credible and sincere. He credibly testified that he has previously spent
time with the subject children, that he purchases items for the subject
children, that he learns with the subject children, that he studies the
Torah with the subject children, and that he genuinely attempts to bond
with and spend as much time as he can with the subject children. The
Court finds that the subject children are adequately safeguarded by Mr.
A.</p>
<p><i>Seventh,</i> as elicited on re-cross examination of the Father by the AFC:</p>
<blockquote>Q: You indicated that the children were made aware of the relocation before the Court order was vacated, correct, you said that?</blockquote>
<blockquote>A: Yes, I did.</blockquote>
<blockquote>Q: So that means you had conversations with them regarding the relocation?</blockquote>
<blockquote>A: They reported to me.</blockquote>
<blockquote>Q: That was not my question, it was a yes or no question.
Did you have conversations with them prior to the vacating of the order
regarding the relocation, yes you did, no, you didn't?</blockquote>
<blockquote>A: Sorry, prior to vacating the order?</blockquote>
<blockquote>Q: Yes.</blockquote>
<blockquote>A: What is vacating?</blockquote>
<blockquote>Q: There was an order the Court then said that order does not exist anymore.</blockquote>
<blockquote>A: <i>Yes.</i></blockquote>
<blockquote>Q: Did you have conversations before that order did not exist anymore, yes, you did, no, you didn't?</blockquote>
<blockquote>A: I did not have conversations with them during the time of the order at all.</blockquote>
<blockquote>Q: You testified that they knew?</blockquote>
<blockquote>A: Before the order. Before the order was given, it was not given right away.</blockquote>
<blockquote>Q: Before the order was given, you had conversations with them regarding the relocations?</blockquote>
<blockquote>A: I responded.</blockquote>
<blockquote>Q: Yes or no?</blockquote>
<blockquote>A: Yes.</blockquote>
<blockquote>Q: And what did you say to them?</blockquote>
<blockquote>A: I don't remember exactly.</blockquote>
<blockquote>Q: Did you discuss relocation with them, yes or no?</blockquote>
<blockquote>A: I told them —</blockquote>
<blockquote>Q: Yes or no, not what you told them. Yes or no. Listen to my questions, please.</blockquote>
<blockquote>Did you discuss relocation with them?</blockquote>
<blockquote>A: Yes.</blockquote>
<blockquote>Q: What did you tell them?</blockquote>
<blockquote>A: Again, I don't remember exactly. It was probably something like —</blockquote>
<blockquote>MS. MARKFIELD: I'm objecting to this line of questioning.
This is beyond the scope of my redirect. There was no questioning on my
redirect regarding any conversations with the kids regarding relocation.</blockquote>
<blockquote>MS. LATZMAN: You allowed it in his recross therefore, I have a right because you allowed it, correct? You did not object.</blockquote>
<blockquote>Q: Back to my question.</blockquote>
<blockquote>What did you say?</blockquote>
<blockquote>A: Again, I don't remember what I said exactly. It was something in the spirit of <i>I don't want you moving so far away from me.</i></blockquote>
<blockquote>Q: And who was present during these conversations?</blockquote>
<blockquote>A: My children.</blockquote>
<blockquote>* * *</blockquote>
<blockquote>Q: The only conversation you had with your children is I
don't want you to move, I will miss you. That's the only thing you said
regarding this litigation and the relocation?</blockquote>
<blockquote>A: I wanted to make, I wanted to tell them that I don't have anything against mom being happy or married. <i>I
don't want you to move because it would be difficult for us to have the
relationship we have. I don't want you to be so far away and I know
from personal experience switching schools and switching cities can be
very stressful is a big risk and I don't want that.</i></blockquote>
<p>(emphasis added).</p>
<p>The Court found the Father's responses to this line of questioning to
initially be evasive. Upon further probing by the AFC, the Court finds
that the Father attempted to unduly influence these children regarding
the Mother's proposed relocation. Not only did the Father attempt to
extract sympathy from the children by stating to them that they would be
"... so far away from me...", he went further by telling them about his
personal experiences regarding switching school and cities is
"stressful" and a "big risk". The Court, therefore, has considered the
Father's attempted undue influence vis-a-vis the issue of relocation.</p>
<p><i>Eighth,</i> and finally, the Father's effectual deferral to SN's
wishes about where he wants to attend school. As elicited on redirect
examination of the Father:</p>
<blockquote>Q: So, just as a final question on this topic, what is your final position on the school?</blockquote>
<blockquote>A: I am ambivalent, <i>but at the end of the day, this is
the school that my son wants. He is excited about it, generally in good
spirits right now and with him going to the school at part of what is
helping him to be in good spirits, I would not mess with that and I
would ultimately consent to him going.</i></blockquote>
<p>While the express wishes of children are not controlling, they are
entitled to great weight, especially where their age and maturity would
make their input particularly meaningful. <a href="https://scholar.google.com/scholar_case?case=3200582306042902639&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Silverman v. Silverman,</i> 186 AD3d 123 (2d Dept. 2020)</a>.
Here, the Father's testimony confirms that while he was opposed to the
Mother's proposed relocation, he nonetheless deferred to the decision
and opinion SN about the school he wished to attend, which is in
Maryland. As elicited on cross-examination of the Father by the Mother's
counsel:</p>
<blockquote>Q: When did your son first communicate to you that he was
interest in attending a Yeshiva high school that offered the ability to
board?</blockquote>
<blockquote>A: I would say about March time.</blockquote>
<blockquote>Q: March of this year?</blockquote>
<blockquote>A: Yes.</blockquote>
<blockquote>* * *</blockquote>
<blockquote>Q: And we spent a lot of time this morning talking about the
application process to the the boarding school in the Baltimore area.
Your son did, in fact, get in?</blockquote>
<blockquote>A: He did.</blockquote>
<blockquote>Q: And did he share with you that he had been accepted?</blockquote>
<blockquote>A: Yes, he did.</blockquote>
<blockquote>Q: And was he excited? Did he appear excited to you?</blockquote>
<blockquote>A: Yes, he did.</blockquote>
<blockquote>* * *</blockquote>
<blockquote>Q: As we stand here today, July 10th of this year, do you, sir, object to your son attending The boarding school?</blockquote>
<blockquote>A: I do not object.</blockquote>
<p>Furthermore, as elicited on cross-examination of the Father by the AFC:</p>
<blockquote>Q: So, in reality and when I ask you this question, I don't
want you to think I'm judging you, you are the father and you have a
right to these feelings, so most of how you feel is that your
relationship with your children clearly would be impacted if they were
to relocate?</blockquote>
<blockquote>A: I would not say that's my primary concern.</blockquote>
<blockquote>Q: If your children indicated a desire to relocate, don't you think it would be important to hear what they have to say?</blockquote>
<blockquote>A: Surely it would be important to hear what they have to say.</blockquote>
<blockquote>Q: And would that be more important than your own feelings regarding relocation?</blockquote>
<blockquote>A: Their assessment of whether relocation for them is good for them if a good thing or not, <i>I trust my feelings better.</i> My sense of what are the risks and what life has taught me the last 40 years.</blockquote>
<p>The Court find's the Father's testimony to be contradictory. On the
one hand, he, in effect and in sum and substance, trusts his life
experiences learned over the last forty years and that his feelings
about the children possibly relocating are superior to his children's
feelings. Yet, on the other hand, the Father admittedly and in effect
deferred to the eldest's son's choice about attending school
out-of-state. Instead of making the decision himself about the schooling
in another state for his child, the Father ostensibly deferred that
decision to the child. The Court, in this respect, does not find the
Father's testimony to be credible.</p>
<p>Accordingly, and for all of the reasons stated herein, it is hereby:</p>
<p>ORDERED, that Branch (A) of the Plaintiff's Order to Show Cause dated
September 12, 2022 be and the same is hereby GRANTED TO THE EXTENT that
the parties' Judgment of Divorce dated January 30, 2020 is hereby
MODIFIED TO THE EXTENT that the Mother is permitted to relocate with the
subject children to Silver Spring, Maryland; and it is further</p>
<p>ORDERED, that the Mother shall provide to the Father the home address
of the residence in which she and the children will be residing in
Maryland in within seven (7) days of the date of this Decision and
Order; and it is further</p>
<p>ORDERED, that Branch (c) of the Defendant's Order to Show Cause dated
August 26, 2021 be and the same is hereby GRANTED TO THE EXTENT that
the Mother shall provide to the Father the home telephone number of the
residence in which she and the children will be residing in Maryland in
within seven (7) days of the date of this Decision and Order.</p>
<p></p><h2>MODIFICATION OF PARENTAL ACCESS</h2><p></p>
<p>In order to modify an existing court-sanctioned parental access
agreement, there must be a showing that there was a sufficient change in
circumstances so that modification is required to protect the best
interests of the child (<i>see </i><a href="https://scholar.google.com/scholar_case?case=3493584122020857558&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Katsoris v. Katsoris,</i> 178 AD3d 794 (2d Dept. 2019)</a>) as well as the welfare of the child (<i>see Matter of </i><a href="https://scholar.google.com/scholar_case?case=14178984404189320096&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Ya Yun Weng v. Zhi Gao,</i> 214 AD3d 895</a>)).
The paramount concern in a parental access determination is the best
interests of the child, under the totality of the circumstances. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=3765139127055748950&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Quattrochi v. Negri,</i> 187 AD3d 921 (2d Dept. 2020)</a>. The determination of appropriate parental access is entrusted to the sound discretion of the court. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=11430469339810323292&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Johnson v. McWilliams,</i> 212 AD3d 620 (2d Dept. 2023)</a>.</p>
<p>In <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=11645660211528941761&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Newton v. McFarlane</i></a><i>,</i>
the Second Department opined that a child has a real and substantial
interest in the outcome of litigation between the parents. <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=11645660211528941761&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Newton v. McFarlane,</i> 174 AD3d 67 (2d Dept. 2019)</a>. As that Court stated:</p>
<blockquote>Litigation over established court-approved child custody and
access arrangements can be unsettling and traumatic for children,
particularly for children of sufficient age or maturity to comprehend,
and worry about, potentially significant changes in their daily lives,
such as what home they live in, what family members they live with, what
schools they go to, what friends they have, and what activities they
undertake.</blockquote>
<p><i>Matter of Newton,</i> 174 AD3d at 76.</p>
<p>Here, the Court finds that the Father has met his burden in
establishing that the best interests of these children would be served
and protected by expanded parental access with him. Parental access
should be regular, frequent and meaningful. <i>See generally </i><a href="https://scholar.google.com/scholar_case?case=13835734000093725&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Radford v. Propper,</i> 190 AD2d 93 (2d Dept. 1993)</a>.
Notwithstanding that the Court grants the Mother's request to relocate,
the Court is nonetheless able to provide the Father with expanded,
meaningful access. In determining custody, while the express wishes of
children are not controlling, they are entitled to great weight,
especially where their age and maturity would make their input
particularly meaningful. <a href="https://scholar.google.com/scholar_case?case=3200582306042902639&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Silverman v. Silverman,</i> 186 AD3d 123 (2d Dept. 2020)</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=16854040810968374080&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Cannella v. Anthony,</i> 127 AD3d 745 (2d Dept. 2015)</a>; <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=8502612993629881373&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Samuel S. v. Dayawathie R.,</i> 63 AD3d 746 (2d Dept. 2009)</a>. While not controlling or dispositive, the wishes and desires of these children are entitled to <i>some</i> weight, based upon their ages and maturity. As the AFC conveyed in a portion of her opening statement:</p>
<blockquote>MS. LATZMAN: Good morning, your Honor.</blockquote>
<blockquote>Your Honor, you listen to the attorneys and it sounds like
there's a lot of animosity. When you speak to the children, you find
three children who love both parents dearly, who have a great time with
each parent, who no nothing about this relocation. They have not been
put in the middle, which I think is probably the most wonderful thing
that no one asked them to make a decision because they're children and
they shouldn't be making a decision; therefore, I can't take a position
on their account regarding the relocation. But I can tell the Court that
they've made it very clear to me that they love spending time with
their father and his wife, they love spending time with their mother and
her husband. They find everyone to be wonderful and kind and caring.
They also told me very clearly that they want to spend more time with
their father.</blockquote>
<blockquote>No one has advised the Court that at the present time the
schedule is Thursdays for dinner, every Thursday, and then alternate
weekends from Friday to Sunday, that's the schedule. The children want
more time with their father. They's like to see him more, they'd like to
spend more time with him. They have a good time there. I'm also told
that SN really wants to go to this boarding school and he advises me
that everyone has consented; again, parents working together for this
boy so that he can go where he wants to go. He intends to spend one
weekend a month with each parent. Interestingly enough, the other two
children are happy to see him go because SS told me he'll then have a
room of his own and he won't need to share anymore. And CS told me that
he's not that friendly any way so it's okay.</blockquote>
<blockquote>THE COURT: So they're kids.</blockquote>
<blockquote>MS. LATZMAN: They're kids. And that's what's so, in a way,
tragic here. They are kids. They're three actually lovely children
thanks to these people. And, your Honor, Ms. Markfield told you how he
used to visit in the car; do you know that mom never told the children
why. Never shared information with these children about their father.
Never in a way said something negative or told them things. These are
people who have really shielded their children and taken care of their
children and made sure that their children grow up to have wonderful
lives. And the tragedy is we're going to sit here today and your Honor
is going to have to make a decision, and no matter what your decision
is, it's going to change these children's lives and that's too bad.</blockquote>
<p>The only position I have is if they could see their father more that's what they want. Thank you, your Honor.</p>
<p>Under the existing schedule pursuant to the Stipulation, the Father
sees the children every other weekend for two full days (Friday to
Sunday) and for ninety (90) minutes one day per week (Thursday). While
the Court understands that granting of the Mother's application makes
the Father's Thursday night ninety (90) minute dinner visit with the
children impossible, the Court finds that quality time with the Father
is better spent by the granting to him of two additional overnights per
month. In this regard, the Court finds that by expanding one of the
Father's alternating weekend parental access periods from Thursday to
Monday (<i>see infra</i>) instead of Friday to Sunday, the children will
be able to spend two additional overnights with the Father. This will
enable the Father to, among other things and for example, have dinner
with the children two more nights, study with the children two more
nights, engage in activities with the children two more nights, and to
be able to say "goodnight" and put his children to bed two additional
nights. While seeing his children once per week under the existing
schedule may be beneficial to the Father, the reality is that after only
ninety minutes with the Father on a Thursday under the existing
schedule, these children must leave; they must say "goodbye". The
extension and expansion of the Father's alternate weekend access on one
weekend eliminates a quick visit where the children conceivably yearn
for more time, while providing to the Father and the children two more <i>full nights</i> that they can spend with each other. To reiterate: visitation is a joint right of the noncustodial parent and the children. <i>See generally Matter of </i><a href="https://scholar.google.com/scholar_case?case=15377314357324189121&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Spampinato v. Mazza,</i> 152 AD3d 525 (2d Dept. 2017)</a>.</p>
<p>The Court is therefore expanding the Father's parental access insofar
as maintaining the concept of an "every other weekend" schedule, but
modifying it insofar as the Father shall have the children on
alternating weekends, with one weekend being from Friday to Sunday (to
take place in New York) and with the other weekend being from Thursday
to Monday (to take place in Maryland). The Court additionally awards the
Father ten (10) days of uninterrupted access with the children over the
summer. While the Court certainly notes that the "quantity" of time may
be slightly reduced, the "quality" of time that the Father will have
with these children is certainly expanded. The Court finds that the best
interests of these children will be better served by additional quality
time with their Father, which includes additional overnights. To adopt
the logic of the Father that his Thursday night ninety (90) minute
parental access periods should, in part, prevent a relocation fails to
see the forest through the trees. These children's best interests would
much better be served by spending two more overnights per month with the
Father, rather than a mere ninety minutes on a Thursday. Ninety minutes
once a week barely gives these children enough time to truly bond with
their Father. The Court finds that the two additional overnights per
month with the Father, along with the additional ten (10) days of
uninterrupted access in the summer, <i>meaningfully</i> replaces the mere ninety (90) minutes of parental access on Thursday nights.</p>
<p>According, and for all of the aforesaid reasons, it is hereby:</p>
<p>ORDERED, that Branch (d) of the Defendant's Order to Show Cause dated
June 16, 2021, Branch (c) of the Defendant's Order to Show Cause dated
June 3, 2022 and Branch (B) of the Plaintiff's Order to Show Cause dated
September 12, 2022 be and the same are all hereby GRANTED TO THE EXTENT
set forth in this Decision and Order such that the parental access
provisions of the parties' Judgment of Divorce dated January 30, 2020 is
hereby MODIFIED TO THE EXTENT set forth in this Decision and Order; and
it is further</p>
<p>ORDERED, that the Father shall have regular parental access with the
subject children, SN, SS and CS on an alternating weekend basis to the
extent and as is more fully set forth in this Decision and Order; and it
is further</p>
<p>ORDERED, that on the first alternate weekend, and on each and every
other alternate weekend thereafter, the Father shall have parenting time
in New York beginning on Friday, commencing two hours before Shabbos,
through Sunday at 5:00 p.m., with the Mother being responsible for the
transportation of the children, with drop-off at the Father's residence
two hours before Shabbos on Friday and pick-up at the Father's residence
on Sunday at 5:00 p.m.; and it is further</p>
<p>ORDERED, that on the second alternate weekend, and on each and every
other alternate weekend thereafter, the Father shall have parenting time
in Maryland beginning on Thursday at 5:00 p.m. through Monday morning
drop-off at school, or if there is no school, drop-off at the Mother's
residence at 9:00 a.m.; and it is further</p>
<p>ORDERED, that on the Father's second alternate weekend of parental
access in Maryland, the Mother shall be liable and responsible for the
cost of a round-trip airline ticket for the Father in economy class, or
the cost of a train ticket for the Father if the Father elects to travel
by train, or the cost of gasoline for the Father's automobile, if the
Father elects to travel by automobile; and it is further</p>
<p>ORDERED, that the Father shall be permitted to purchase his
round-trip economy class airline ticket or his train ticket in advance
and shall submit proof of payment to the Mother within seven (7) days of
purchase thereof, with the Mother to reimburse the Father within seven
(7) days of her receipt of proof of payment thereof; and it is further</p>
<p>ORDERED, that in the event that the Father elects to travel by
automobile, he shall submit proof of payment of all gasoline purchased
to and from New York to Maryland and then Maryland to New York within
seven (7) days of his return to New York, with the Mother to reimburse
the Father within seven (7) days of her receipt of proof of payment
thereof; and it is further</p>
<p>ORDERED, that on the Father's second alternate weekend of parental
access in Maryland, the Mother shall be liable and responsible for the
cost of a hotel room with two bedrooms for the Father and the subject
children or a comparable Airbnb with two bedrooms for the Father and the
subject children; and it is further</p>
<p>ORDERED, that the Father shall be permitted to book a hotel room or
Airbnb in advance and shall submit proof of payment to the Mother within
seven (7) days of purchase thereof, with the Mother to reimburse the
Father within seven (7) days of her receipt of proof of payment thereof;
and it is further</p>
<p>ORDERED, that the Father shall have ten (10) days of uninterrupted
parenting time with the children each and every Summer, which may be
taken either: (a) after the conclusion of school and before summer camp,
or (b) after summer camp and before the commencement of school, or (c)
at anytime during the summer if the children do not attend summer camp;
and it is further</p>
<p>ORDERED, that the one uninterrupted week of parenting time over the
summer shall be selected by the Father at his discretion, which the
selection of dates to be provided to the Mother by not later than May
15th; and it is further</p>
<p>ORDERED, that the Mother shall be responsible for transporting the
children to and from the Father's home in New York at the commencement
and conclusion of his ten (10) uninterrupted days of summer
vacation/access with the children; and it is further</p>
<p>ORDERED, that the modified parental access schedule herein shall
become effective upon the Mother's relocation to Maryland; and it is
further</p>
<p>ORDERED, that Branch (b) of the Plaintiff's Order to Show Cause dated May 19, 2021 be and the same is hereby DENIED.</p>
<p></p><h2>MODIFICATION OF CUSTODY/COMPLIANCE WITH ORDERS</h2><p></p>
<p>During the Hearing, the Mother withdrew her request for a
modification of the Judgment to the extent that she sought sole custody
of the children. Accordingly, it is hereby:</p>
<p>ORDERED, that Branch (a) of the Plaintiff's Order to Show Cause dated
May 19, 2021 be and the same is hereby deemed WITHDRAWN and not
adjudicated herein; and it is further</p>
<p>ORDERED, that Branch (d) of the Defendant's Order to Show Cause dated
August 26, 2021 and Branch (E) of the Plaintiff's Order to Show Cause
dated May 19, 2021 be and the same are all hereby GRANTED TO THE EXTENT
that both parties are directed to comply with the custody provisions of
the parties' Stipulation of Settlement dated September 26, 2019, unless
to the extent that any of those provisions were modified or augmented by
this Decision and Order.</p>
<p></p><h2>MODIFICATION OF DRUG TESTING/OPERATION OF MOTOR VEHICLE</h2><p></p>
<p>The parties' Stipulation provides:</p>
<blockquote>6.29 DRUG TESTING</blockquote>
<blockquote>A. The FATHER agrees that he will go monthly for drug
testing for two years from the signing of this agreement under the
auspicious [sic] of Dr. Hylton Lightman. In the event he tests positive
for substance abuse, FATHER's visitation will become supervised by a
person of the MOTHER's choice until such time as the Drug testing comes
back clean for a period of three (3) consecutive weeks.</blockquote>
<blockquote>B. The parties acknowledge that the Mother shall have the
right to compel the Father to submit to a random drug test (without
prior order or permission of a court) as she deems appropriate. The
Father shall immediately inform the Mother if he fails any drug test.</blockquote>
<blockquote>C. In the event that the Father fails to submit to a drug
testing in accordance with this Agreement, or a court's directive/order,
or as requested/required by any treating facility or monitoring the
Father's sobriety, including but not limited to an outpatient program
attended by the Father, or if the Father fails a drug test, the Father's
custody and parenting time rights shall be adjusted as follows: Until
such time as the Father tests negatively for drug use for a period of
three (3) consecutive weeks, the Father's parenting time set forth
herein shall be suspended and the Father shall instead be entitled to
weekly supervised parenting time with the Children, supervised by the
Mother or any third party approved by the Mother, which shall not
include overnight parenting time.</blockquote>
<blockquote>D. Furthermore, until such time as the Father tests
negatively for drug use for a period of three (3) consecutive weeks, the
Mother shall have final decision making authority in the event that a
dispute arises between the parties with regard to a major decision
relating to the Child after consultation with the professional involved
in the Child's life pertaining to that particular issue.
Notwithstanding, the parties shall endeavor to avoid making any major
decisions for the Child during such period of time where this provision
with regard to joint legal custody shall apply.</blockquote>
<blockquote>E. This provision shall also apply in the event that the
Father fails to submit to drug testing in accordance with this
Agreement, or a court's directive/order, or as requested by any facility
treating or monitoring the Father's sobriety, including but not limited
to an outpatient program attended by the Father, or if the Father fails
a drug test.</blockquote>
<p>It is clear to the Court from the testimony and evidence adduced at
the Hearing that the Father has a history of using Adderall. It was
clear to the Court that the Father previously entered rehabilitation for
the use and/or misuse of Adderall. While that may have occurred prior
to the execution of the Stipulation, the Court finds his history germane
inasmuch as he seeks to modify the drug testing provisions of the
parties' Stipulation. Notably, the Father testified that he continues to
use Adderall, albeit consistent with how it is prescribed by his
treating clinician. However, what shines bright to the Court is his
continued use of Adderall notwithstanding and irrespective of his prior
stint in rehabilitation. The Father, therefore, has failed to convince
this Court that the drug testing parameters of the underlying
Stipulation should be abated. While the Court lauds the Father for
entering rehabilitation, the Court's duty runs to protect the interests
of the children. Courts should never lose sight of the State's interest
as parens patriae in protecting the well-being of children, as well as
the overwhelming interest in the safety of children. <a href="https://scholar.google.com/scholar_case?case=8800105427337334783&q=sg+v+mg&hl=en&as_sdt=4,33"><i>In re Anne BB,</i> 202 AD2d 806 (3d Dept. 1994)</a>.
Given the Father's continued use of Adderall, this Court must ensure
that the Father is taking that medication consistent with the parameters
of how it is prescribed, and finds that the drug testing provisions of
the parties' Stipulation should remain in full force and effect.
Accordingly, it is hereby:</p>
<p>ORDERED, that Branch (c) of the Defendant's Order to Show Cause dated
June 16, 2021 be and the same is hereby DENIED; and it is further</p>
<p>ORDERED, that Branch (D) of the Plaintiff's Order to Show Cause dated
May 19, 2021 be and the same is hereby GRANTED TO THE EXTENT that, when
the children are present in the car with the Father, the Father shall
not operate a vehicle while under the influence of alcohol or illegal
drugs, nor shall he operate said vehicle if he is under the influence of
any prescription medication inconsistent with how said medication is
prescribed.</p>
<p></p><h2>SUMMER ACCESS 2022</h2><p></p>
<p>The Court notes that the summer months of 2022 have long passed. Accordingly, it is hereby:</p>
<p>ORDERED, that Branch (d) of the Defendant's Order to Show Cause dated
June 3, 2022 be and the same is hereby deemed MOOT and not adjudicated
herein.</p>
<p></p><h2>RIGHT OF FIRST REFUSAL</h2><p></p>
<p>Inasmuch as the Court has granted the Mother permission to relocate
with the children to Maryland, the Court does not find that granting the
Father the right of first refusal to be practical. In actuality, the
right of first refusal in this instance would be a near impossibility.
In any event, even if the Court had not granted the Mother the right to
relocate to Maryland, it does not find that the Father met his burden to
modify the Judgment insofar as granting him a right of first refusal.
Accordingly, it is hereby:</p>
<p>ORDERED, that Branch (e) of the Defendant's Order to Show Cause dated June 3, 2022 be and the same is hereby DENIED.</p>
<p></p><h2>COUNSEL FEES</h2><p></p>
<p>Both parties effectively seek reimbursement of some of their counsel
fees incurred in connection with these enforcement of modification
proceedings. Domestic Relations Law § 238 provides, in relevant part,
that:</p>
<blockquote>"... [i]n any action or proceeding to enforce or modify any
provision of a judgment or order entered in an action for divorce ...
the court may in its discretion require either party to pay counsel fees
and fees and expenses of experts directly to the attorney of the other
party to enable the other party to carry on or defend the action or
proceeding as, in the court's discretion, justice requires having regard
to the circumstances of the case and of the respective parties..."</blockquote>
<p>However, the Court has carefully reviewed the exhibits appended by
both parties to their respective applications. While the Defendant
appends his retainer agreement with his counsel to Motion Sequence No.:
002, and while the Plaintiff appends her retainer agreement with her
prior counsel to Motion Sequence No.: 003, neither party appends their
billing invoices/statement(s) for services rendered to their respective
applications. To this end, the Court is unable to determine the amount
of legal fees incurred with respect to the instant application(s) (<i>see generally </i><a href="https://scholar.google.com/scholar_case?case=4821430608033196313&q=sg+v+mg&hl=en&as_sdt=4,33"><i>DeCamello v. DeCamello,</i> 151 AD3d 804 (2d Dept. 2017)</a>
(documentation needed to establish how much in legal fees were
incurred)), which constrains the Court to deny same without prejudice to
renewal upon compliance with the applicable requirements (<i>see generally </i><a href="https://scholar.google.com/scholar_case?case=10276023090525546308&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Daich v. Daich,</i> 153 AD3d 900 (2d Dept. 2017)</a>. <i>See also F.J.O. v. M.I.O.,</i>
76 Misc 3d 1207(A) (Supreme Court Nassau County 2022) (denying without
prejudice and with leave to renew counsel fee application in the absence
of statements for services rendered). Accordingly, it is hereby:</p>
<p>ORDERED, that Branch (e) of the Defendant's Order to Show Cause dated
June 16, 2021 be and the same is hereby DENIED without prejudice and
with leave to renew upon the submission of proper papers demonstrating
compliance with applicable requirements; and it is further</p>
<p>ORDERED, that Branch (D-2) of the Plaintiff's Order to Show Cause
dated August 23, 2021 be and the same is hereby DENIED without prejudice
and with leave to renew upon the submission of proper papers
demonstrating compliance with applicable requirements.</p>
<p>Any other relief requested not specifically herewith is hereby DENIED.</p>
<p>This constitutes the DECISION AND ORDER of this Court.</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[1]" name="[1]">[1]</a> Signed by the Hon. Joseph H. Lorintz, J.S.C., in the absence of the undersigned Justice.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[2]" name="[2]">[2]</a>
The Court may refer to the subject children as the "G children" to
avoid confusion as both parties have remarried and their respective new
spouses also each have children of their own.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[3]" name="[3]">[3]</a> <i>See</i> Defendant's Exhibit B, in evidence.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[4]" name="[4]">[4]</a>
In determining whether a proposed relocation is in a child's [or
children's] best interests, courts are free to consider and give
appropriate weight to <i>all of the factors that may be relevant to the determination. Matter of </i><a href="https://scholar.google.com/scholar_case?case=13950602003857483498&q=sg+v+mg&hl=en&as_sdt=4,33"><i>Argila v. Edelman,</i> 174 AD3d 521 (2d Dept. 2019)</a> (emphasis added). The Court finds the other factors discussed herein (<i>see infra</i>) to be relevant to it's determination.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[5]" name="[5]">[5]</a> <i>See</i> Plaintiff's Exhibit 5, in evidence.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[6]" name="[6]">[6]</a> <i>See</i> Plaintiff's Exhibit 2, in evidence.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[7]" name="[7]">[7]</a> <i>See</i> Plaintiff's Exhibit 1, in evidence.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=4594404837235958611&q=sg+v+mg&hl=en&as_sdt=4,33#r[8]" name="[8]">[8]</a>
It also does not appear to the Court that the Father wants the
children to principally reside with him, as he does not request custody (<i>see infra</i>)."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-13833921969012356542023-11-03T06:45:00.001-04:002023-11-03T06:45:37.603-04:00NO MORE AFFIDAVITS?<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/b392/document_agreement_documents_sign_3.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="532" data-original-width="800" height="532" src="https://free-images.com/lg/b392/document_agreement_documents_sign_3.jpg" width="800" /></a></div><br />Effective January 1, 2024, any person can submit an affirmation under penalty of perjury in lieu of an affidavit. "The requirement that litigants and other court participants have documents notarized is unduly burdensome, and federal law removed such requirements for federal courts decades ago. Attorneys, physicians, osteopaths and dentists, as well as any person outside the jurisdiction of the United States, are already exempt from the New York requirement to submit affidavits and may submit affirmations instead. This bill will align New York with the over 20 states that follow federal practice. It will relieve unnecessary burdens on litigants, non-party witnesses, county clerks, and courts."<p></p><p>See <span style="color: #555555; font-family: Raleway; font-size: 12pt;">Bill</span><a href="https://link.m.nysa.membercentral.org/ss/c/GayRCSGmLP9ip7jwAPm4M_7yPL1zptq25dHl1ai2gdpwKJ7a4DdXTpRCuSCjV7HE01lYiXyHC-fprSeYsvtEcq4qg210fnwdpF8ajwb0btgu_j7IHYu4XXbaEndWjXdmV5wXPVUboWE-Ug0Vf-khqg/40x/C9lHUm30R7OTVN5-pKcs2w/h0/VFiWD13Cxqlew7_Bo_mRdQgBIU02qxHipx-00xfwois" style="font-family: Raleway; font-size: 12pt;" target="_blank"><span style="color: #f8b370;"> A5772/S5162</span></a></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-79430897049870633492023-11-02T06:35:00.003-04:002023-11-02T06:35:27.686-04:00FREE CLINIC TODAY - I WILL BE THERE<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgXYUhyphenhyphenkJUkhVWRlZTh1pTDkkHo8Ode53Qj2K4Uz2d0Ce1NP9jtf5cKeyGv9rVWzdDnbp8cEY2x_9Hg3sWGty7eJWZ1tZYj_0E7c71WkvuhZHW78cJml8dLgK8TzCInClYJCvtO5w6qGN2q6ktQjzVbPKHR0j5Cg94vYnQ1BsQHjmWCkHlNh6t_YiQbrz1N/s3654/Veterans'%20Legal%20Clinic-Poster%202023-English%201.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="3654" data-original-width="2436" height="640" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgXYUhyphenhyphenkJUkhVWRlZTh1pTDkkHo8Ode53Qj2K4Uz2d0Ce1NP9jtf5cKeyGv9rVWzdDnbp8cEY2x_9Hg3sWGty7eJWZ1tZYj_0E7c71WkvuhZHW78cJml8dLgK8TzCInClYJCvtO5w6qGN2q6ktQjzVbPKHR0j5Cg94vYnQ1BsQHjmWCkHlNh6t_YiQbrz1N/w426-h640/Veterans'%20Legal%20Clinic-Poster%202023-English%201.jpg" width="426" /></a></div><br /><p></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-38154517279900414332023-10-27T08:35:00.005-04:002023-10-27T08:35:44.259-04:00FREE CLINIC ON NOVEMBER 2 FOR VETERANS<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEibR5icVChJtkCU5mdytcDzccQDnfwUcGX4Z69vxmBBeW4txuOx2mtRFlLUT9VgMZZSGtHsrsLVORMz0oquhPxRunMeQDK_o1q9jORUBnQEDE4VLR-Xi_tqYC4MuiBvo7aj9alr57p5l71Z5bSPZk-Bl9cfiMV77M4ZSbx1P1hEuZtcTfQ6xmg8qojPEvF9/s3654/Veterans'%20Legal%20Clinic-Poster%202023-English%201.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="3654" data-original-width="2436" height="640" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEibR5icVChJtkCU5mdytcDzccQDnfwUcGX4Z69vxmBBeW4txuOx2mtRFlLUT9VgMZZSGtHsrsLVORMz0oquhPxRunMeQDK_o1q9jORUBnQEDE4VLR-Xi_tqYC4MuiBvo7aj9alr57p5l71Z5bSPZk-Bl9cfiMV77M4ZSbx1P1hEuZtcTfQ6xmg8qojPEvF9/w426-h640/Veterans'%20Legal%20Clinic-Poster%202023-English%201.jpg" width="426" /></a></div><br /> <p></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-25402739440734958622023-10-26T10:58:00.002-04:002023-10-26T10:58:15.178-04:00A MILLION DOLLAR AWARD OF SANCTIONS<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZwJB_Cen6b5ue-Nfeq_elBCWskFavDFbSLWE1tpfMOvuLRdNFKvNFPQDZRV9vJQ_ExbfXZg-NgnBcYUr9IeW5PuaLDWkR4AX2Csd3V5ckkX-9aCDeKzNORb9UbUPilPqGxj28dzIQ_PnPrrqlZlDMJFWYxCM-6VYmIbMYwPscpoBPUsu7rF7sKu3eKv35/s954/JMPLAW1.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="711" data-original-width="954" height="476" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZwJB_Cen6b5ue-Nfeq_elBCWskFavDFbSLWE1tpfMOvuLRdNFKvNFPQDZRV9vJQ_ExbfXZg-NgnBcYUr9IeW5PuaLDWkR4AX2Csd3V5ckkX-9aCDeKzNORb9UbUPilPqGxj28dzIQ_PnPrrqlZlDMJFWYxCM-6VYmIbMYwPscpoBPUsu7rF7sKu3eKv35/w640-h476/JMPLAW1.jpg" width="640" /></a></div><br />And this is one real Family Feud:<p></p><p>Shapiro v Kurtzman
2023 NY Slip Op 23326
Decided on October 5, 2023
Supreme Court, Rockland County
Marx, J., Index No. 7875/2001:</p><p>Paul I. Marx, J.</p><div class="tab-content has-no-border"><div class="block" id="opinion"><p>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.</p>
<p>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.</p>
<p>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. </p>
<p>On August 10, 2021, the Court found that</p>
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)<p>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.</p>
<p>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.</p>
<p>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:</p>
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.<p>The Court continued:</p>
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.<p>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.</p>
DISCUSSION<p>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].</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
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].<p>In Chambers v NASCO, Inc., <a class="related-case" href="https://supreme.justia.com/cases/federal/us/501/32/">501 U.S. 32</a>,
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.</p>
<p>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.</p>
<p>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.</p>
<br />The Parties' Arguments<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>Court Rule § 130-1.1(a) provides full justification for the Court's determination. It provides, in pertinent part:</p>
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).<p>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.</p>
<br />Other Issues Presented<p>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".</p>
<p>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.</p>
<p>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.</p>
<p>In Fox v Vice, supra, the Supreme Court emphasized that</p>
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).
<p>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.</p>
<br />The Amount of Fees To Be Awarded<p>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.</p>
<br />The Reasonableness of Defendant's Counsel's Rates<p>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.</p>
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).<p>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. </p>
<p>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:</p>
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).<p>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.</p>
<p>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.</p>
<br />Fees for Appeal of Apotheker Order<p>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].</p>
<p>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.</p>
<p>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</p>
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).<p>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.</p>
<p>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:</p>
[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].<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<br />[*9]Fees on Fees<p>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.</p>
<p>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.</p>
<p>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.</p>
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.<p>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.</p>
Interest<p>CPLR § 5001 provides for interest to be awarded in certain cases, as follows:</p>
(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.<p>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".</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.
</p>
<br />The Prior Fee Award to Kurtzman<p>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].</p>
<p>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. </p>
<p>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." </p>
<p>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. </p>
<p>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.</p>
<p>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.</p>
<br />Fees Awarded<p>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.</p>
<p>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.</p>
<p>In her "Opposition to Fee Application" dated March 1, 2022, Shapiro
specifically challenges the fees sought by Kurtzman for the following:</p>
<p>(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.</p>
<p>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.</p>
<p>(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".</p>
<p>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.</p>
<p>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.</p>
<p>(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.</p>
<p>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.</p>
<br />Summary<p>It is hereby:</p>
<p>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</p>
<p>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.</p>
Dated: October 5, 2023<br />White Plains, New York<br />HON. PAUL I. MARX, J.S.C.
Footnotes
<br /><br />
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.
<br /><br />
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.
<br /><br />
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.
<br /><br />
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].
<br /><br />
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)].
<br /><br />
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].
<br /><br />
Footnote 7: $921,345.99 + $96,881.17-$10,000=$1,008,227.16 </div></div><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-62651132805480462182023-10-26T07:30:00.005-04:002023-10-26T07:30:49.309-04:00FREE LAW CLINIC TODAY - I WILL BE THERE<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhwtAfG6KsTFHsIqTWn43nOG2LL9iwHUq45xxcqTymGfFd1HVItGxjXTm0-MZ_jt-nqMI__Dhm6VAu2uZu_biWTcONLLG0rSKUNSAlqRB_osZqELb_i2n4USrPy-v0iCk81IoemlyjBKvfhvl59mM8HG85W5KpOJroGfw_bM_a2tJuMI-TcpbVO3oKc7lTW/s2200/OPEN%20HOUSE%20FINAL%20ENGLISH-%20SPANISH%202023_Page_1.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="2200" data-original-width="1700" height="640" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhwtAfG6KsTFHsIqTWn43nOG2LL9iwHUq45xxcqTymGfFd1HVItGxjXTm0-MZ_jt-nqMI__Dhm6VAu2uZu_biWTcONLLG0rSKUNSAlqRB_osZqELb_i2n4USrPy-v0iCk81IoemlyjBKvfhvl59mM8HG85W5KpOJroGfw_bM_a2tJuMI-TcpbVO3oKc7lTW/w494-h640/OPEN%20HOUSE%20FINAL%20ENGLISH-%20SPANISH%202023_Page_1.jpg" width="494" /></a></div><br /> <p></p><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-90569258158390185462023-10-24T08:20:00.002-04:002023-10-24T08:20:10.606-04:00A "VERY CONTESTED" POST DIVORCE PROCEEDING ON CHANGE OF CUSTODY<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/ccb1/hands_couple_red_x.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="600" data-original-width="800" height="600" src="https://free-images.com/lg/ccb1/hands_couple_red_x.jpg" width="800" /></a></div><br />KW v. WB, 2023 NY Slip Op 51095 - West. Co. Supreme Court 2023:<p></p><p>"ANAR RATHOD PATEL, J.</p>
<p>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, <i>inter alia,</i> 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], <i>Esq.</i> and [Redacted], <i>Esq.</i> of the law firm of [Redacted]<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=7150069742911132289&q=kw+v+wb&hl=en&as_sdt=4,33#[1]" name="r[1]">[1]</a></sup>; Defendant was represented by [Redacted], <i>Esq.</i>; the Children were represented by Attorney for the Children [Redacted], <i>Esq.</i></p>
<p>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. <i>See</i> 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.</p>
<p>Parties filed the consolidated trial transcripts ("Tr.") on May 30, 2023, and post-trial memoranda on July 6 and 7, 2023. <i>See</i>
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 (<i>see</i> 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.</p>
<p></p><h2>Relevant Factual and Procedural History</h2><p></p>
<p>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." <i>Id.</i> 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. <i>Id.</i> at 11.</p>
<p>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.</p>
<p></p><h2>May 26, 2019 Child Protective Services ("CPS") Report</h2><p></p>
<p>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:</p>
<blockquote>• "Mother stated that there was a history of [domestic violence ("DV")] which is part of the reason for the divorce"</blockquote>
<blockquote>• "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"</blockquote>
<blockquote>• "Mother stated that in addition to that, the children visit with the father for weekend visits [<i>sic</i>] and it appears that [O.B.] has infection or irritation in the penis"</blockquote>
<blockquote>• "Mother stated her daughter is reported to be using the bathroom too much so took [<i>sic</i>] [A.B.] to urologist and [<i>sic</i>]
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 [<i>sic</i>] is using the bathroom too much and the routine of her visiting her dad"</blockquote>
<blockquote>• "In addition, mother stated that father has mental health issues that father is reported to be diagnosed with bipolar"</blockquote>
<p><i>Id.</i> 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 [<i>sic</i>] 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. <i>Id.</i></p>
<p>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." <i>Id.</i> The records further indicate that [Redacted] "would not treat for a UTI [Urinary Tract Infection] at this point." <i>Id.</i>
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)." <i>Id.</i> The urinalysis test did not show evidence of a urinary tract infection.</p>
<p>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. <i>Id.</i> 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. <i>Id.</i> 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. <i>Id.</i> Defendant denied the history of DV and of mental illness. <i>Id.</i></p>
<p>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).</p>
<p></p><h2>September 10, 2019 CPS Report</h2><p></p>
<p>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:</p>
<blockquote>• "children were returned from school after a weekend with the children's father"</blockquote>
<blockquote>• "[O.B.] told mom, that according to mom, that `Pappa had put his finger in my butt for a long time.'"</blockquote>
<blockquote>• "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"</blockquote>
<blockquote>• "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"</blockquote>
<blockquote>• "mom states that dad was sexually abused by dad's mom as a child"</blockquote>
<p>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." <i>Id.</i></p>
<p>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." <i>Id.</i>
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." <i>Id.</i></p>
<p>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.]." <i>Id.</i></p>
<p>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 [<i>sic</i>] 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. <i>Id.</i></p>
<p></p><h2>September 23, 2019 CPS Report</h2><p></p>
<p>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'." <i>Id.</i> 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." <i>Id.</i></p>
<p>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.</p>
<p>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." <i>Id.</i> 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." <i>Id.</i> [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." <i>Id.</i></p>
<p>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." <i>Id.</i></p>
<p>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." <i>See</i> Ct. Ex. 3 (Mot. Seq. No. 20) at Ex. E (11/22/19 OCFS Letter).</p>
<p>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).</p>
<p></p><h2>The Parties' Relevant Post-Judgment Motions</h2><p></p>
<p>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, <i>inter alia,</i>
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, <i>inter alia,</i> 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, <i>inter alia,</i> 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).</p>
<p>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." <i>Id.</i> at 4. O.B. asked repeatedly "Are you our dad?" and A.B. asked "Are you our real dad?" <i>Id.</i>
The SVE Report indicates that additional supervised visits occurred on
November 6, 9, 16, 20, and 23, 2019, and without incident.</p>
<p>On November 15, Plaintiff moved by order to show cause seeking, <i>inter alia,</i>
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).</p>
<p>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. <i>See</i>
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 <i>in camera</i> review. <i>Id.</i>
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.</p>
<p>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"). <i>See</i> Ct. Ex. 35 (1/28/20 Mot. Seq. No. 18) at 4; <i>see also</i> Ct. Ex. 3 (Mot. Seq. No. 20) at Ex. M (1/14/20 Tr.).</p>
<p>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." <i>Id.</i> at 7.</p>
<p>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." <i>Id.</i> at 11:13-15.</p>
<p>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. <i>See</i> Ct. Ex. 3 (Mot. Seq. No. 20) at 17.</p>
<p>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).</p>
<p>On October 28, 2020, the Court appointed [Redacted], <i>Esq.</i> 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).</p>
<p>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, <i>inter alia,</i> 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.).</p>
<p>On September 2, 2022, Defendant filed the third instant motion seeking, <i>inter alia,</i>
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).</p>
<p></p><h2>The Forensic Reports</h2><p></p>
<p>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. <i>See</i> 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." <a href="https://scholar.google.com/scholar_case?case=17908073992916609834&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Koslowski v. Mangialino,</i> 36 AD3d 916, 917, 830 N.Y.S. 2d 557 (2d Dept. 2007)</a>.</p>
<p>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].</p>
<p>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:</p>
<blockquote>"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 (<i>e.g.,</i>
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." <i>Id.</i> at 332.</blockquote>
<p>The [Redacted] Report does not identify any "red flags" suggesting
that Defendant poses a danger to the Children as alleged by Plaintiff:</p>
<blockquote>"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 (<i>e.g.,</i> 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." <i>Id.</i> at 33.</blockquote>
<p>The [Redacted] Report also addressed the allegations raised in the May and September 2019 CPS investigations:</p>
<blockquote>"[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)." <i>Id.</i> at 34.</blockquote>
<p>[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. <i>See</i> 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.</p>
<p>[Redacted] opines on the CPS investigations as follows:</p>
<blockquote>"[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." <i>Id.</i> at 51.</blockquote>
<blockquote>"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." <i>Id.</i> at 56.</blockquote>
<p>The [Redacted] Report specifically addresses the allegations made by
Plaintiff regarding the alleged four penis infections experienced by
O.B.:</p>
<blockquote>"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." <i>Id.</i> at 51.</blockquote>
<p>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." <i>Id.</i> 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." <i>Id.</i> at 56.</p>
<p>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." <i>Id.</i></p>
<p></p><h2>Pre-Trial Proceedings</h2><p></p>
<p>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 <i>in limine</i> (Mot. Seq. No. 28), <i>see</i>
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 <i>in camera</i> review.</p>
<p>Parties appeared for trial on January 30, at which time Plaintiff
moved to discharge her attorney, which application was granted. <i>See</i> NYSCEF Doc. No. 274 (1/20/23 Tr.); <i>see also</i>
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).</p>
<p>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 <i>in camera</i> review. <i>Id.</i>; <i>see also</i> NYSCEF Doc. No. 346 (3/28/23 Protective Order).</p>
<p>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 <i>in camera</i> review. <i>Id.</i></p>
<p></p><h2>Trial Proceedings</h2><p></p>
<p>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).</p>
<p></p><h2>May 26, 2019 CPS Report</h2><p></p>
<p>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.</p>
<p>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, <i>see</i> Tr. 268:8-10, because they had already e-mailed about the weekend and Defendant "didn't mention anything about the bikes." <i>Id.</i>
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.</p>
<p>[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. <i>Id.</i> at 1296:2-13. She could not recall
whether she recommended that Plaintiff call Defendant directly to find
out what had transpired. <i>Id.</i> at 1296:23-25.</p>
<p>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.</p>
<p>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.</p>
<p>[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; <i>see also</i> Def. Ex. F ([Redacted] Daycare Records).</p>
<p>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." <i>See</i> 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.</p>
<p>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.</p>
<p></p><h2>September 10, 2019 & September 23, 2019 CPS Reports</h2><p></p>
<p>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. <i>Id.</i></p>
<p>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.</p>
<p>[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. <i>Id.</i> at 143:13-21. He conducted a physical examination of O.B. and there were no physical findings of sexual abuse. <i>Id.</i> at 114:25-115:3. He further testified that Plaintiff told him that Defendant was sexually abused by his mother as a child. <i>Id.</i>
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. <i>Id.</i> at 114:3-6.</p>
<p>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.</p>
<p>[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.</p>
<p>[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. <i>Id.</i> 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, <i>see</i> 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." <i>Id.</i> Therefore, he spoke with Plaintiff and "explained that we do not feel there is enough for criminal charges at this time." <i>Id.</i>; <i>see also</i>
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." <i>Id.</i> at 9-10. When asked if he believed that [O.B.] was coached by Plaintiff, [Redacted] answered "yes." <i>Id.</i>
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.</p>
<p>[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.</p>
<p>[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.</p>
<p>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).</p>
<p>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.</p>
<p>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; <i>see also</i> 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.</p>
<p>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. <i>See</i> 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.</p>
<p>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.</p>
<p>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.</p>
<p>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. <i>See</i> Tr. 336:24-338:8.</p>
<p></p><h2>October 2, 2019 Daycare Incident</h2><p></p>
<p>[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; <i>see also</i> Def. Ex. F ("Dad came to pickup, very angry, aggressive").</p>
<p>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.</p>
<p>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. <i>See</i> 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.</p>
<p>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; <i>see also</i>
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. <i>See id.</i>
[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.</p>
<p></p><h2>Supervised Visitation and Interference with Access</h2><p></p>
<p>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. <i>Id.</i> 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.</p>
<p>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.</p>
<p>[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.</p>
<p>Defendant testified that he sought to restore his unsupervised access in late October 2019, <i>see</i>
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. <i>See</i> 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.</p>
<p>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; <i>see also</i>
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.</p>
<p>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; <i>see also</i> Ct. Exs. 11-14 (Mot. Seq. No. 22).</p>
<p>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.</p>
<p></p><h2>Allegations Regarding Defendant's Mental Health and Abuse</h2><p></p>
<p>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.</p>
<p>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.</p>
<p>[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." <i>Id.</i> 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.</p>
<p>[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. <i>Id.</i> 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. <i>Id.</i> at 220:4-7.</p>
<p>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." <i>Id.</i> [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.</p>
<p></p><h2>Allegations Regarding Plaintiff's Coaching of the Children</h2><p></p>
<p>Defendant introduced into evidence audio recordings of the Children
that he recorded on dates spanning from September 2019 through July
2022.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=7150069742911132289&q=kw+v+wb&hl=en&as_sdt=4,33#[2]" name="r[2]">[2]</a></sup>
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:</p>
<blockquote>• A.B. states on September 19, 2019 that "She [Plaintiff] said I could get a new dad"</blockquote>
<blockquote>• 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"</blockquote>
<blockquote>• A.B. asks on November 2, 2019 "You're our real dad?"</blockquote>
<blockquote>• A.B. states on December 12, 2019 "Mommy says you have to wipe me and [O.B.]"</blockquote>
<blockquote>• A.B. states on August 16, 2020 "She [Plaintiff] said you don't go in heaven"</blockquote>
<blockquote>• 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?"</blockquote>
<p><i>See</i> 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. <i>See</i> 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 <i>supra</i> at page 15.</p>
<p>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.</p>
<p></p><h2><i>Lincoln</i> Hearing</h2><p></p>
<p>During the trial, counsel placed on the record their respective positions as to a <i>Lincoln</i> hearing. Tr. at 573-582. Each of the parties agreed that the decision as to whether to conduct a <i>Lincoln</i>
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 <i>Lincoln</i> hearing so that the Court could determine the veracity of the allegations of coaching.</p>
<p>The decision to conduct a <i>Lincoln</i> hearing to determine the best interests of the child in a custody dispute is within the discretion of the trial court. <i>See Matter of </i><a href="https://scholar.google.com/scholar_case?case=6930772882642985967&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Desroches v. Desroches,</i> 54 AD3d 1035, 1036, 864 N.Y.S.2d 551, 553 (2d Dept. 2008)</a>.
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 <i>Lincoln</i>
hearing would not offer anything of value to the extensive proof that
has been presented at trial, the Court declined to conduct a <i>Lincoln</i> hearing. Tr. 1465:11-1466:1; <i>see also </i><a href="https://scholar.google.com/scholar_case?case=11701925723274592042&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Picot v. Barrett,</i> 8 AD3d 288, 777 N.Y.S.2d 698, 699 (2d Dept. 2004)</a>.</p>
<p></p><h2>Post-Trial Submissions</h2><p></p>
<p></p><h2>Plaintiff</h2><p></p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=7150069742911132289&q=kw+v+wb&hl=en&as_sdt=4,33#[3]" name="r[3]">[3]</a></sup>
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." <i>Id.</i> She maintains
that she has always been the primary caregiver, and that she would
continue to foster a relationship between the Children and Defendant. <i>Id.</i> at 25.</p>
<p>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. <i>Id.</i> 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. <i>Id.</i> at 15.</p>
<p></p><h2>Defendant</h2><p></p>
<p>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." <i>Id.</i>
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:</p>
<blockquote>• 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).</blockquote>
<blockquote>• 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).</blockquote>
<p></p><h2>Attorney for the Children</h2><p></p>
<p>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 [<i>sic</i>] their Father and sometimes they want more time with their Mother." NYSCEF Doc. No. 436 (AFC Post-Tr. Sub) at 21, n. 19.</p>
<p>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. <i>Id.</i>
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." <i>Id.</i>
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.</p>
<p></p><h2>Legal Analysis</h2><p></p>
<p>"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." <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=16922789753053195870&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Olea v. Diaz,</i> 194 AD3d 721, 722, 143 N.Y.S.3d 583 (2d Dept. 2021)</a>; <i>see </i><a href="https://scholar.google.com/scholar_case?case=7103578007220629713&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Eschbach, 56 NY2d at 171</i></a><i>.</i> There is "no <i>prima facie</i> right to custody of the child in either parent." DRL § 70(a); DRL § 240(1)(a). Factors to be considered include, <i>inter alia,</i>
"(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." <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=16836474218949891822&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Montebello v. Montebello,</i> 184 AD3d 565, 566, 123 N.Y.S.3d 539 (2d Dept. 2020)</a> (internal quotation marks omitted); <i>see Matter of Olea,</i>
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. <a href="https://scholar.google.com/scholar_case?case=15768543243891306670&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Janecka v. Franklin,</i> 150 AD2d 755, 756, 542 N.Y.S.2d 206 (2d Dept. 1989)</a>
("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").</p>
<p>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. <i>See </i><a href="https://scholar.google.com/scholar_case?case=9687949576134468538&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Bourne v. Birstow,</i> 66 AD3d 621, 622, 886 N.Y.S.2d 502 (2d Dept. 2009)</a>.
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. <i>See </i><a href="https://scholar.google.com/scholar_case?case=11996940468822847956&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Matter v. Dolan Masterton,</i> 121 AD3d 979, 980, 995 N.Y.S.2d 123 (2d Dept. 2014)</a>. The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal. <i>See </i><a href="https://scholar.google.com/scholar_case?case=10543388057351601546&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Alper v. Alper,</i> 77 AD3d 694, 909 N.Y.S.2d 131 (2d Dept. 2010)</a>.</p>
<p>"`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.'" <a href="https://scholar.google.com/scholar_case?case=8077850253580661092&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Greenberg v. Greenberg,</i> 144 AD3d 625, 629, 41 N.Y.S.3d 49 (2d Dept. 2016)</a>.
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." <a href="https://scholar.google.com/scholar_case?case=7103578007220629713&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Eschbach v. Eschbach,</i> 56 NY2d 167, 171, 436 N.E.2d 1260 (1982)</a>.
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." <i>Matter of </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=12856993169708213880&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Carl J.B. v. Dorothy T.,</i> 186 AD2d 736, 373, 589 N.Y.S2d 53 (2d. Dept. 1992)</a> (internal citations omitted).</p>
<p></p><h2>Credibility</h2><p></p>
<p>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.</p>
<p>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. <i>See</i> 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. <i>See</i> 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. <i>See</i> 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. <i>See</i> Tr. 1302:18-21.</p>
<p>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:</p>
<blockquote>"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.</blockquote>
<p></p><h2>Substantial Change in Circumstances</h2><p></p>
<p>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, <i>see, e.g., </i><a href="https://scholar.google.com/scholar_case?case=13606840510700021217&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Honeywell v. Honeywell,</i> 39 AD3d 857, 858, 835 N.Y.S.2d 327 (2d Dept. 2007)</a>
("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 <i>per se</i> 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, <i>see, e.g., </i><a href="https://scholar.google.com/scholar_case?case=5402072942338722968&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Stern v. Stern,</i> 304 AD2d 649, 649, 758 N.Y.S.2d 155 (2d Dept. 2003)</a>
(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, <i>see </i><a href="https://scholar.google.com/scholar_case?case=8472365408399772618&q=kw+v+wb&hl=en&as_sdt=4,33"><i>McClurkin v. Bailey,</i> 78 AD3d 707, 708, 911 N.Y.S.2d 99 (2d Dept. 2010)</a>
(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." <a href="https://scholar.google.com/scholar_case?case=755794084379188056&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Picado v. Doan,</i> 90 AD3d 932, 933, 934 N.Y.S.2d 495 (2d Dept. 2011)</a>.
Here, Defendant has established there has been a substantial change in
circumstances since the parties entered into the March 2019 Stipulation.</p>
<p>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.</p>
<p><i>Repeated and Unfounded Allegations</i></p>
<p>The record establishes that Plaintiff made and repeated the following allegations as to Defendant to third-parties:</p>
<p></p><pre> 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]
</pre><p></p>
<p>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.</p>
<p>The testimony of Defendant and [Redacted] demonstrate that
Plaintiff's allegation that Defendant was sexually abused by his mother
is unsubstantiated.</p>
<p>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. <i>See</i> Tr. 1097:20-25.</p>
<p>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.</p>
<p>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., <i>see, e.g.,</i> 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.</p>
<p>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. <i>See </i><a href="https://scholar.google.com/scholar_case?case=17006673960061691148&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Fargasch v. Alves,</i> 116 AD3d 774, 775, 983 N.Y.S.2d 607 (2d Dept. 2014)</a> (mother's unfounded allegations of sexual abuse of a child established a change in circumstances).</p>
<p></p><h2><i>Alienation</i></h2><p></p>
<p>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, <i>per se,</i> raises a strong possibility that the interfering parent is unfit to act as a custodial parent." <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=1909085144319782565&q=kw+v+wb&hl=en&as_sdt=4,33"><i>J.F. v. D.F.,</i> 61 Misc 3d 1226 (A), 112 N.Y.S.3d 438, 2018 NY Slip Op. at</a>
*4 (Sup. Ct. 2018). Here, Defendant has established that Plaintiff has
engaged in alienation thereby supporting his application for a change in
custody.</p>
<p>Defendant offered credible evidence and testimony that Plaintiff demeaned Defendant to the Children and to others as discussed <i>supra.</i>
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.").</p>
<p>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.</p>
<p>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.</p>
<p></p><h2><i>Interference</i></h2><p></p>
<p>Courts have found that interference with another parent's visitation and access time constitutes a change in circumstances. <i>See, e.g., </i><a href="https://scholar.google.com/scholar_case?case=15792838854462422533&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Tori v. Tori,</i> 103 AD3d 654, 654, 958 N.Y.S.2d 510 (2d Dept. 2013)</a>; <a href="https://scholar.google.com/scholar_case?case=10636829287716011148&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Goldstein v. Goldstein,</i> 68 AD3d 717, 720, 889 N.Y.S.2d 661 (2d Dept. 2009)</a>.
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.</p>
<p>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.</p>
<p></p><h2><i>Joint Custody No Longer Suitable: Deterioration of the Parties' Relationship</i></h2><p></p>
<p>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. <i>See </i><a href="https://scholar.google.com/scholar_case?case=16185531057211552447&q=kw+v+wb&hl=en&as_sdt=4,33"><i>O'Connell v. McDermott,</i> 80 AD3d 701, 701-702, 915 N.Y.S.2d 143 (2d Dept. 2011)</a>
("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.</p>
<p>Accordingly, the trial testimony establishes a change in
circumstances supporting Defendant's application for a modification of
custody.</p>
<p></p><h2>Best Interests of the Child</h2><p></p>
<p>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. <i>See Matter of </i><a href="https://scholar.google.com/scholar_case?case=10800191523439203580&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Murray v. Hall,</i> 294 AD2d 504, 504-505 (2d Dept. 2002)</a>. Furthermore, New York courts have found that a parent's false accusations of sexual abuse by the other parent, <i>see, e.g., </i><a href="https://scholar.google.com/scholar_case?case=4599107581851688390&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Altieri v. Altieri,</i> 156 AD3d 667, 669, 66 N.Y.S.3d 323 (2d Dept. 2017),</a> <a href="https://scholar.google.com/scholar_case?case=13606840510700021217&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Honeywell,</i> 39 AD3d at 858,</a> and/or efforts to alienate the child from the other parent, <i>see, e.g., </i><a href="https://scholar.google.com/scholar_case?case=6021417644941999038&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Vargas v. Gutierrez,</i> 155 AD3d 751, 753, 64 N.Y.S.3d 76 (2d Dept. 2017)</a>; <a href="https://scholar.google.com/scholar_case?case=5402072942338722968&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Stern,</i> 304 AD2d at 649,</a> are inconsistent with the best interests of the child.</p>
<p>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.</p>
<p>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.</p>
<p>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. <i>See</i>
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. <i>See </i><a href="https://scholar.google.com/scholar_case?case=4699713451116724748&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Aponte v. Jagnarain,</i> 205 AD3d 803, 169 N.Y.S.3d 105 (2d Dept. 2022)</a>.
"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'." <a href="https://scholar.google.com/scholar_case?case=8085462390088210423&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Kortright v. Bhoorasingh,</i> 137 AD3d 1037, 1038, 27 N.Y.S.3d 235 (2d Dept. 2016)</a>.
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.</p>
<p>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.</p>
<p>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. <i>See, e.g.,</i>
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.</p>
<p>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." <a href="https://scholar.google.com/scholar_case?case=1983833224778295108&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Wright v. Perry,</i> 169 AD3d 910, 911-912, 95 N.Y.S.3d 108 (2d Dept. 2019)</a>
(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.</p>
<p>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.</p>
<p></p><h2><i>Access Schedule</i></h2><p></p>
<p>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:</p>
<p>Week 1:</p>
<p></p><pre> 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
</pre><p></p>
<p>Weel: 2</p>
<p></p><pre> 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
</pre><p></p>
<p>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, <i>see</i> 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.</p>
<p></p><h2><i>Decision-Making</i></h2><p></p>
<p>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 <i>via</i> 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.</p>
<p>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.</p>
<p></p><h2><i>Fostering Parent/Children Relationships</i></h2><p></p>
<p>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.</p>
<p></p><h2>Civil Contempt and Sanctions</h2><p></p>
<p>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. <i>See</i> 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." <i>Matter of </i><a href="https://scholar.google.com/scholar_case?case=13766840881676212409&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Hughes v. Kameva,</i> 96 AD3d 845, 846 (2d Dept. 2012)</a>; <i>see </i><a href="https://scholar.google.com/scholar_case?case=1093085266878024332&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Cassarino v. Cassarino,</i> 149 AD3d 689, 690 (2d Dept. 2017)</a>.
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. <i>See</i> Judiciary Law § 753[A][3]; <a href="https://scholar.google.com/scholar_case?case=11521221329093962764&q=kw+v+wb&hl=en&as_sdt=4,33"><i>El-Dehdan v. El-Dehdan,</i> 26 NY3d 19, 29 (2015)</a>.</p>
<p>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.</p>
<p>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.</p>
<p></p><h2>Conclusion</h2><p></p>
<p>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," <a href="https://scholar.google.com/scholar_case?case=7103578007220629713&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Eschbach v. Eschbach,</i> 56 NY2d 167, 171, 436 N.E.2d 1260 (1982),</a> and accordingly, has awarded sole legal and primary physical custody to Defendant.</p>
<p>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.</p>
<p>Accordingly, it is hereby,</p>
<p>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</p>
<p>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,</p>
<p>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,</p>
<p>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,</p>
<p>ORDERED that all other relief requested and not decided herein in denied.</p>
<p>The foregoing constitutes the Decision and Order of this Court.</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=7150069742911132289&q=kw+v+wb&hl=en&as_sdt=4,33#r[1]" name="[1]">[1]</a>
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 <i>pro se</i> in place of [Redacted]. NYSCEF Doc. No. 443.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=7150069742911132289&q=kw+v+wb&hl=en&as_sdt=4,33#r[2]" name="[2]">[2]</a>
The admissibility of the audio recordings was raised at trial by
Plaintiff, who argued that the recordings contain inadmissible hearsay
and are unreliable because, <i>inter alia,</i> 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, <i>see </i><a href="https://scholar.google.com/scholar_case?case=3360622662526325136&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Lipton v. New York City Transit Authority,</i> 11 AD3d 201, 782 N.Y.S.2d 269 (1st Dept. 2004)</a>
(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. <i>See, e.g., </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=5801515429805005835&q=kw+v+wb&hl=en&as_sdt=4,33"><i>Mateo v. Tuttle,</i> 26 AD3d 731, 809 N.Y.S.2d 699 (4th Dept. 2006)</a>.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=7150069742911132289&q=kw+v+wb&hl=en&as_sdt=4,33#r[3]" name="[3]">[3]</a>
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."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-80989485090284168582023-10-05T08:43:00.002-04:002023-10-05T08:43:56.229-04:00NEW YORK - NO MORE $500 CREDIT ON HOUSE SALES<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/4255/us_500_tn_1891.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="684" data-original-width="800" height="684" src="https://free-images.com/lg/4255/us_500_tn_1891.jpg" width="800" /></a></div><br />Signed into law on September 22:<p></p><p>"<span style="color: #222222; font-family: monospace, monospace; font-size: 16px;">BILL NUMBER: S5400</span></p><div class="c-detail--memo" style="box-sizing: inherit; color: #222222; font-family: "Proxima Nova Regular", Arial, sans-serif; font-size: 16px;"><pre class="c-bill-fulltext" style="box-sizing: inherit; font-family: monospace, monospace; margin-bottom: 0px; margin-top: 0px; overflow: hidden; text-wrap: wrap;">SPONSOR: HOYLMAN-SIGAL
TITLE OF BILL:
An act to amend the real property law, in relation to requiring disclo-
sure of information concerning flood insurance on property condition
disclosure statements; and to repeal section 467 of the real property
law relating to liability with respect to property disclosures
SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 and 2 of the bill amend the Real Property Law to add new
questions relating to a property's flood history and flood insurance
requirements to the Property Condition Disclosure Statement set forth by
such section. Property owners would have to disclose whether the proper-
ty is located in a 100-year or 500-year floodplain according to FEMA's
flood insurance rate maps, whether the property is subject to require-
ments under federal law to obtain and maintain flood insurance, and the
property's flood insurance history.
Section 3 of the bill amends Section 465 of the Real Property Law to
strike subdivision 1, which currently provides that in the event that a
</pre></div><div class="c-detail--memo" data-linecount="65" id="memo-expand-2023-S5400" style="box-sizing: inherit; color: #222222; font-family: "Proxima Nova Regular", Arial, sans-serif; font-size: 16px;"><pre class="c-bill-fulltext" style="box-sizing: inherit; font-family: monospace, monospace; margin-bottom: 0px; margin-top: 0px; overflow: hidden; text-wrap: wrap;">seller fails to provide the Property Condition Disclosure Statement to a
buyer prior to a sale, the buyer receives a $500 credit towards the sale
of the property. It also adds the provisions of Section 467 of the Real.
Property Law, which is repealed by the bill, to Section 465 of the Real
Property Law.
Section 4 of the bill repeals Section 467 of the Real Property Law.
Section 5 of the bill provides the effective date.
JUSTIFICATION:
New York's current flood risk disclosure laws require sellers of resi-
dential real property to provide buyers with a property condition
disclosure statement prior to the buyer signing a contract of sale.
Among other things, the statement requires the seller to disclose wheth-
er a property is located in a "designated floodplain," and whether there
are any flooding, drainage, or grading problems that have resulted in
standing water on the property.
The Natural Resources Defense Council (NRDC) currently gives New York's
flood risk disclosure law a failing grade, thanks in large part to the
fact that if a seller fails to provide the disclosure statement to the
buyer, the only penalty for doing so is that the seller has to provide
the buyer a $500 credit towards the purchase price of the property.
This negligible penalty leads many sellers to treat the requirement to
provide the disclosure statement as optional, and the $500 credit as
merely a cost of doing business. New York is unique in this regard, as
no other state has this opt-out credit option in law. The questions
relating to flood history and risk on New York's disclosure statement
are also in need of an update to conform with more comprehensive laws
passed in states such as Texas and Louisiana which provide buyers with
more specific information about the nature of the property's flood risk
and their obligation under federal law to obtain flood insurance for the
property.
New Yorkers deserve to be informed about the condition of residential
property they purchase and to be aware of any flood risks they might
face when buying or renting their homes, especially in an era where
so-called "100-year floods" are happening much more frequently due to
climate change.
This bill would update New York's disclosure statement to arm homebuyers
with more information and repeal the $500 credit, requiring sellers to
either provide the disclosure statement or risk being held liable for
failure to do so.
PRIOR LEGISLATIVE HISTORY:
A.7876/S.5472 of 2021-22 - the provisions of this legislation pertaining
to residential leases were included in and passed as A.7876-A/S.5472 and
signed into law by the Governor
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law"</pre></div><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0tag:blogger.com,1999:blog-3717763000184349948.post-19789783978495264212023-10-02T07:27:00.001-04:002023-10-02T07:27:18.338-04:00NEW YORK - KINSHIP DISQUALIFICATION ARGUMENT DISMISSED FOR LACK OF STANDING<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://free-images.com/lg/076c/children_s_library_reading.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="600" data-original-width="800" height="600" src="https://free-images.com/lg/076c/children_s_library_reading.jpg" width="800" /></a></div><br />BB EX REL ROSENTHAL v. HOCHUL, Dist. Court, ED New York 2023:<p></p><p>"DISCUSSION</p><p></p>
<p></p><h2>I. Rule 12(b)(1) Motion</h2><p></p>
<p></p><h2>A. Article III Standing</h2><p></p>
<p>"No principle is more fundamental to the judiciary's proper role in
our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies. The concept
of standing is part of this limitation." <a href="https://scholar.google.com/scholar_case?case=18352907181422138211&hl=en&as_sdt=6,33&as_vis=1"><i>Simon v. E. Ky. Welfare Rights Org.,</i> 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)</a>
(citation omitted). At the pleading stage, elements of Article III
standing are not "mere pleading requirements but rather an indispensable
part of the plaintiff's case," and "each element must be supported in
the same way as any other matter on which the plaintiff bears the burden
of proof." <a href="https://scholar.google.com/scholar_case?case=14078774646484992527&hl=en&as_sdt=6,33&as_vis=1"><i>Carter v. HealthPort Technologies, LLC,</i> 822 F.3d 47, 56 (2d Cir. 2016)</a>
(citation omitted.) Specifically, a plaintiff must plead to have (1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision." <a href="https://scholar.google.com/scholar_case?case=11810453531811593153&hl=en&as_sdt=6,33&as_vis=1"><i>Spokeo, Inc. v. Robins,</i> 578 U.S. 330, 338 (2016)</a> (quoting <a href="https://scholar.google.com/scholar_case?case=10150124802357408838&hl=en&as_sdt=6,33&as_vis=1"><i>Lujan v. Defs. of Wildlife,</i> 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)</a>).
Of course, "general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we presume
that general allegations embrace those specific facts that are necessary
to support the claim." <i>Id.</i> (citation omitted). And while the
Court must accept the truth of a plaintiff's allegations at the motion
to dismiss stage, the plaintiff still bears the burden of alleging facts
that affirmatively and plausibly suggest that [the plaintiff] has
standing to sue. <i>See </i><a href="https://scholar.google.com/scholar_case?case=9063373663029951595&hl=en&as_sdt=6,33&as_vis=1"><i>Calcano v. Swarovski North America Ltd.,</i> 36 F.4th 68, 75 (2d Cir. 2022)</a> (citations omitted.)</p>
<p>Plaintiffs maintain that they suffered injuries resulting from the
alleged violations of three constitutional rights arising under the
Fourteenth Amendment: the right to family association and integrity; the
right to be free from unreasonable and unnecessary intrusions into
their emotional well-being; and the right to not be maintained in
government custody longer than is necessary, including unreasonable
duration of foster care. (Compl. ¶ 19.) In seeking to dismiss the
complaint, Defendants contend that Plaintiffs fail to establish
standing. (Defs.' Mem. Supp. Mot. to Dismiss ("Defs.' Mem.") at 8-9, ECF
No. 25.) The Court agrees.</p>
<p></p><h2>1. Constitutional Right to Family Association and Integrity</h2><p></p>
<p>"Freedom of personal choice in matters of . . . family life is one of
the liberties protected by the Due Process Clause of the Fourteenth
Amendment." <a href="https://scholar.google.com/scholar_case?case=16214076107928881371&hl=en&as_sdt=6,33&as_vis=1"><i>Smith v. Org. of Foster Families For Equal. & Reform,</i> 431 U.S. 816, 842 (1977)</a>
(internal quotation marks omitted). Indeed, this Court has previously
concluded that there are few rights more paramount than the right to the
preservation of family integrity. <i>See </i><a href="https://scholar.google.com/scholar_case?case=17135692709923174258&hl=en&as_sdt=6,33&as_vis=1"><i>Alford v. City of New York,</i> 413 F. Supp. 3d 99, 106 (E.D.N.Y. 2018)</a>
(finding that the rights for a child to remain in parental custody and
to preserve family integrity are "paramount.")). Of particular relevance
here, this right extends not only to a parent and a child, but also to
foster parents and their foster children. <i>See </i><a href="https://scholar.google.com/scholar_case?case=1617618542012009872&hl=en&as_sdt=6,33&as_vis=1"><i>Rivera v. Marcus,</i> 696 F.2d 1016, 1022, 1025 (2d Cir. 1982)</a>
(finding that a custodial relative and foster parent is entitled to due
process protections "when the state decides to remove a dependent
relative from the family environment."); <i>see also Sykes v. New York State Office of Children and Family Services,</i>
No. 18-cv-8309, 2019 WL 4688608, at *11 (S.D.N.Y. Sept. 25, 2019)
(stating that "it has been clear in this Circuit that kinship foster
parents—that is, foster parents who are related to their foster
children—are entitled to due process protection before foster children
are removed from their custody.") Importantly, in this context, the
liberty interest in the right to family association is implicated only
where the government seeks to remove a child from their familial
association and deprive the parent of their interest in the care,
custody and management of the child. <a href="https://scholar.google.com/scholar_case?case=10727860042663437187&hl=en&as_sdt=6,33&as_vis=1"><i>Kia P. v. McIntyre,</i> 235 F.3d 749, 759 (2d Cir. 2000)</a>
("For purposes of procedural due process analysis, parents have `a
constitutionally protected liberty interest in the care, custody and
management of their children,'" and "children have a parallel
constitutionally protected liberty interest in not being dislocated from
the emotional attachments that derive from the intimacy of daily
[family] association.") (internal quotation marks omitted).</p>
<p>Here, Defendants argue that B.B., T.R., Z.W., D.W., C.W.C., J.S.,
S.S., C.C., E.R., A.R. and M.R., ("Directly Placed Plaintiffs"), failed
to plead an injury to their right to family association and integrity
because each of these Plaintiffs is alleged to reside with a Kin
Caregiver. That is, according to the complaint, B.B. resides with his
maternal great grandparents. (Compl. ¶¶ 22-24.) T.R. resides with his
maternal grandmother and uncle. (<i>Id.</i> ¶ 40.) Z.W. and D.W reside with their maternal uncle. (<i>Id.</i> ¶ 61-62.) C.W.C resides with her maternal grandmother. (<i>Id.</i> ¶ 73-75, 80.) J.S. and S.S. reside with their maternal grandmother. (<i>Id.</i> ¶ 94-95.) C.C. resides with her aunt and uncle. (<i>Id.</i> ¶ 112-13, 119.) And, E.R., A.R. and M.R., reside with their maternal grandmother. (<i>Id.</i>
¶ 121-22, 131.) As such, there can be no deprivation of the Kin
Caregiver's interest in the care, custody and management of the
children.</p>
<p>Incredibly, Plaintiffs fail altogether to address Defendants' argument.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[3]" name="r[3]">[3]</a></sup> Instead, Plaintiffs assert in summary fashion:</p>
<blockquote>"Here[,] Plaintiffs allege a concrete and actual injury in
fact that is directly caused by Defendants' unconstitutional
certification system that routinely denies children placement in
familiar, safe[,] and loving foster or adoptive homes of relatives
solely based on irrelevant aspects of their relatives' past. The denial
of kin foster or adoptive home constitutes a concrete and particular
injury."</blockquote>
<p>(Pls.' Mem. L. in Opp'n to Defs.' Mot. Dismiss ("Pls.' Opp'n") at 6,
ECF No. 28.) Of course, nothing in that assertion addresses how the
right to familial association is implicated in the cases of the Directly
Placed Plaintiffs who each reside with a relative. That said, the
Directly Placed Plaintiffs do argue that they are at an ongoing risk of
placement in stranger foster care. (<i>Id.</i>) And, while an
injury-in-fact requires a plaintiff to show that he or she suffered an
invasion of a legally protected interest that is concrete and
particularized, Plaintiffs correctly note that a constitutional injury
may arise by an unreasonable risk of harm. <i>See </i><a href="https://scholar.google.com/scholar_case?case=6245084584884960583&hl=en&as_sdt=6,33&as_vis=1"><i>Lacewell v. Office of Comptroller of Currency,</i> 999 F.3d 130, 141 (2d Cir. 2021)</a>
("An allegation of future injury may suffice if the threatened injury
is `certainly impending,' or there is a `substantial risk' that the harm
will occur") (citations omitted). Still, any injury must be "actual or
imminent," not "conjectural or hypothetical." <a href="https://scholar.google.com/scholar_case?case=15809191887523660313&hl=en&as_sdt=6,33&as_vis=1"><i>Lawyers' Committee for 9/11 Inquiry, Inc. v. Garland,</i> 43 F.4th 276, 281 (2d Cir. 2022)</a>
("To demonstrate Article III standing, a plaintiff must show that he
suffered an `injury in fact'—`an invasion of a legally protected
interest which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical.'").</p>
<p>Here, the complaint is devoid of any allegation that might suggest
there is an imminent risk that the Directly Placed Plaintiffs will be
removed from their current kinship placement. That Plaintiffs have
characterized their direct placement as "temporary" is insufficient to
make the requisite showing. (Compl. ¶ 71.) For example, B.B. has resided
with his maternal grandparents since 2018 — over five years — and there
is no allegation that suggests that this custodial placement is poised
to change. (<i>Id.</i> ¶¶ 22-37.)<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[4]" name="r[4]">[4]</a></sup>
In March 2018, J.S. was removed from his parents care and was
"immediately" placed in the care of his maternal grandmother, Ms. S. (<i>Id.</i>
¶ 94.) One month later, in April 2018, J.S.'s younger sister was born
and she, too, was immediately placed in the care of Ms. S. (<i>Id.</i>) To date, J.S. and S.S. have remained in the care of Ms. S, no less than at least five years. (<i>Id.</i>
¶ 99.) Here again, Plaintiffs do not include any allegation suggesting
that ACS might immediately remove either J.S. or S.S. from Ms. S's care.
To the contrary, the allegations suggest that the expectation is for
their placement with Ms. S to continue into the future. (<i>Id.</i> ¶¶
100-101.) That is, it is alleged that Ms. S has the very real concern
that she may not be able to retire if she must care for J.S. and S.S.
without support or services from ACS. (<i>Id.</i> ¶100.) Z.W. and D.W. have been placed with the with their maternal uncle for over two years. (<i>Id.</i>
¶ 61.) There, the "children are thriving in their care," and ACS
reported that "the children are `bonded and comfortable' with their
uncle and his partner." (<i>Id.</i> ¶ 62, 66.) The Court could go on. In
sum, nothing about Plaintiffs' allegations allow for the inference that
any of the Directly Placed Plaintiffs is laboring under an actual or
imminent threat of removal. Directly Placed Plaintiffs lack standing to
sue for a violation of the right to family association and integrity.</p>
<p>Although the standing analysis for J.R., M.P., and C.P. differs from
that of the Directly Placed Plaintiffs, the outcome is the same. Relying
on a declaration from Cynthia Covington, the Acting Assistant
Commissioner of Systems and Security Administration at ACS, and
accompanying exhibits, Defendants argue that the Kin Caregivers for
Plaintiffs M.P. and J.R. "voluntarily relinquish[ed]" custody over them,
and that Plaintiff C.P. was never removed from his Kin Caregiver's
home. (Defs.' Mem. at 9-10; Cynthia Covington Declaration ("Covington
Decl."), ECF No. 26.) As such, according to Defendants, Plaintiffs have
failed to adequately allege that any injury to their right to family
association and integrity is fairly traceable to Defendants. In
response, Plaintiffs argue that it is inappropriate for Defendants to
present extrinsic material on a Rule 12(b)(1) motion "if [] defendant[s]
[are] challenging the legal sufficiency of []plaintiffs' jurisdictional
allegations. (Pls.' Opp'n at 3-4.) While this may be true, it does not
preclude the Court from considering extrinsic evidence here. As
Defendants correctly note, a defendant is permitted to rely on evidence
outside of the pleadings, where, as here, they challenge the factual
basis for the Court's jurisdiction. <i>See </i><a href="https://scholar.google.com/scholar_case?case=14078774646484992527&hl=en&as_sdt=6,33&as_vis=1"><i>Carter v. HealthPort Technologies, LLC,</i> 822 F.3d 47, 57 (2d Cir. 2016)</a>
("[A] defendant is permitted to make a fact-based Rule 12(b)(1) motion,
proffering evidence beyond the Pleading.") In view of the evidence
adduced by Defendants, it is clear that Plaintiffs have failed to allege
an injury as to J.R., M.P., and C.P. that is fairly traceable to
Defendants.</p>
<p>Traceability, in the context of a standing analysis, requires a
demonstration of a "causal connection between the injury and the conduct
complained of." <i>See </i><a href="https://scholar.google.com/scholar_case?case=10150124802357408838&hl=en&as_sdt=6,33&as_vis=1"><i>Lujan,</i> 504 U.S. at 560</a>;
Put differently, the alleged injury must be "fairly ... traceable to
the challenged action of the defendant, and not ... the result of the
independent action of some third party not before the court." <i>See </i><a href="https://scholar.google.com/scholar_case?case=10150124802357408838&hl=en&as_sdt=6,33&as_vis=1"><i>Lujan,</i> 504 U.S. at 560</a> (citations omitted); <i>see also </i><a href="https://scholar.google.com/scholar_case?case=2244440503456121877&hl=en&as_sdt=6,33&as_vis=1"><i>Chevron Corp. v. Donziger,</i> 833 F.3d 74, 121 (2d Cir. 2016)</a>
(holding that traceability "focuses on whether the asserted injury
could have been a consequence of the defendant rather than being
attributable to the `independent' acts of some other person not before
the court.") A plaintiff cannot establish traceability if a plaintiff's
injury stems from a voluntary decision that was not fairly traceable to a
defendant's conduct. <i>See, e.g., </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=836458434871410634&hl=en&as_sdt=6,33&as_vis=1"><i>Holocombe v. Ingredients Solutions, Inc.,</i> 797 F. App'x 630, 633 (2d Cir. 2020)</a>
(summary order) (finding that plaintiff's injury stemmed from a
voluntary decision and thus was not fairly traceable to defendants'
alleged misconduct). Such is the case here.</p>
<p>In a very carefully worded paragraph, Plaintiff M.P. alleges that:</p>
<blockquote>"In the fall of 2020, Ms. M. began to really struggle to
continue to care for M.P. Ms. M. was unable to work due to an injury,
and without the Childcare Supports and Services that come with a foster
care placement, some of M.P.'s behavioral needs became difficult to
manage. ACS removed M.P. from Ms. M's home [i]n December 2020 and placed
him back at the RTC where he had felt unsafe."</blockquote>
<p>(Compl. ¶ 58.) As to J.R., Plaintiffs allege that he was placed with his paternal grandmother, Ms. V. (<i>Id.</i>
¶ 86.) According to the complaint, that placement was going so
"smoothly and well" that ACS "started the process of withdrawing their
petition to terminate J.R.'s father's parental rights because ACS was
working toward KinGAP<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[5]" name="r[5]">[5]</a></sup> with Ms. V. as J.R.'s permanency plan." (<i>Id.</i>
¶ 87.) It was only upon Ms. V.'s denial of foster care certification
that it is alleged that ACS "removed" J.R. from Ms. V.'s home. (<i>Id.</i> ¶¶ 86, 88.) Nonetheless, the complaint is deafeningly silent as to how or why J.R. and M.P. were removed.</p>
<p>Plaintiff M.P.'s Kin Caregiver also voluntarily relinquished custody
of M.P., once in 2018 and then again in 2020. (Def. Mem. at 10.) In
December 2018, Plaintiff M.P. was placed with his Kin Caregiver, Ms. M.
(Compl. ¶ 51, Covington Decl. ¶¶ 20, 22, Ex. 6 at 12, ECF No. 32-6.)
According to ACS records, Ms. M decided that she could not care for him
because she could not manage M.P.'s behavioral issues. (Ex. 6 at 13.)
M.P. was placed at the Children's Village in May 2019 and then returned
to Ms. M's home at an unspecified date. (Compl. ¶ 52.) ACS records
indicate that in December 2020, Ms. M again requested that M.P. be
removed from her home because he was breaking her furniture. (Covington
Decl., Ex. 8 at 78-79, 96-97, ECF No. 32-8.) It was at that point that
ACS removed M.P. from Ms. M.'s care. (Compl. ¶ 58.)</p>
<p>However, as Ms. Covington's declaration makes clear, J.R.'s
grandparents voluntarily returned J.R. to ACS's care. J.R. was placed
with his grandmother in November 2017. (Covington Decl., Ex. 2 at 3, ECF
No. 32-2.) As ACS records reflect, in February 2018, J.R.'s grandmother
returned J.R. to ACS because she was unable to care for him due to
health issues. (<i>Id.</i>) In December 2019, J.R. was again placed on
an extended visit with his paternal grandparents. (Compl. ¶ 86; Ex. 2 at
10.) But, two months later, in February 2020, J.R.'s paternal
grandparents decided that J.R. should be removed from their home because
they could not financially provide for him. (Compl. ¶ 88; Ex. 2 at 10,
11; Ex. 3 at 4, 12, ECF No. 32-3.)</p>
<p>It is inescapable that both M.P. and J.R. were voluntarily
relinquished from their Kin Caregivers' care. Indeed, in response to
Defendants' voluntary relinquishment argument, Plaintiffs cite to
paragraphs 52, 58, 86, and 88 of the complaint to note that "[e]ach Kin
caregiver applied to be a foster parent for their relative child and
only after they were denied certification did <i>they</i> determine they were unable to care for that child." (Pl.'s Opp'n at 6 n.5.) In other words, Plaintiffs seem to agree.</p>
<p>Allegations with respect to Plaintiff C.P. fare no better. According
to the complaint, C.P. was removed from his mother in October 2020.
(Compl. ¶ 103.) Plaintiffs do not challenge that removal. C.P. was
subsequently placed at a shelter and then in a foster home. (<i>Id.</i>
¶¶ 103, 105.) Conspicuously absent is any allegation that C.P. ever
resided with a Kin Caregiver and was removed at the direction of ACS. On
that basis alone, Plaintiffs fail to allege an injury to C.P.'s right
to familial integrity. Admittedly, Plaintiffs allege that C.P.'s uncle,
Mr. P., offered to become foster parent but that ACS refused to certify
Mr. P. because of a prior misdemeanor conviction. (<i>Id.</i> ¶¶ 103, 106.) As a result, according to the complaint, C.P is in a stranger foster home. (<i>Id.</i>
¶ 103.) As with M.P. and J.R., however, there are no allegations that
permit the Court to infer that C.P's placement in stranger foster care
versus (presumably) with his uncle can be attributed to conduct by
Defendants.</p>
<p>Plaintiffs M.P, J.R., and C.P. fail to plead an injury to their right to family association and integrity.</p>
<p></p><h2>2. Constitutional Right to Be Free from Harm</h2><p></p>
<p>As courts in this Circuit have recognized, "under certain
circumstances, the federal Constitution imposes upon the government an
affirmative duty to provide services and care to individuals in state
custody." <i>Marisol A. by </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1"><i>Forbes v. Giuliani,</i> 929 F. Supp. 662, 674 (S.D.N.Y. 1996)</a>.
More to the point, under the Fourteenth Amendment, the Government must
provide to those individuals in its custody "reasonably safe conditions
of confinement and general freedom from undue bodily restraint." <i>Id.</i>
This right to be "free from harm" reaches the right to "essentials of
care such as adequate food, shelter, clothing and medical attention,"
and appropriate conditions and duration of foster care. <i>Id.</i> at 675. This right also includes the right to be free from psychological, emotional and developmental harm. <i>Id.</i>
For example, one court reasoned: "A child's physical and emotional
wellbeing are equally important. Children are by their nature in a
developmental phase of their lives and their exposure to traumatic
experiences, can have an indelible effect upon their emotional and
psychological development and cause more lasting damage than many
strictly physical injuries." <a href="https://scholar.google.com/scholar_case?case=14522276584723118522&hl=en&as_sdt=6,33&as_vis=1"><i>B.H. v. Johnson,</i> 715 F. Supp. 1387, 1395 (N.D. Ill. 1989)</a>.
The Court sees no basis for disagreeing with this thinking. Similarly,
the Court is in agreement with those courts that have found that the
right to be free from harm includes the right to an appropriate duration
of foster care. <i>See, e.g., Marisol,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1">929 F. Supp. at 676</a>
(stating that "the right to be free from harm encompasses the right
alleged by plaintiffs to appropriate conditions and duration of foster
care"). In other words, the Court joins its sister courts in taking a
broad view of the concept of harm attendant to the right to be free from
unreasonable intrusions into a child's emotional harm. But, the fact
that the Court agrees with this broad view does not overcome the
deficiencies raised by Defendants with respect to standing.</p>
<p>It is axiomatic that to find an injury to a right that relates to the
conditions of an individual's confinement requires, as a condition
precedent, that the individual actually be in custody. For that reason,
perhaps, Defendants argue that none of the Directly Placed Plaintiffs
have standing to sue for a violation of their right to be free from
harm, because none of the Directly Placed Plaintiffs are in government
custody. (Defs.' Mem. at 8.) Tellingly, Plaintiffs fail to direct the
Court to any allegation that suggests the contrary. This failure is
fatal to the Directly Placed Plaintiffs' claim that they have standing
to sue for an injury to their right to be free from harm. Of course,
given that M.P., J.R., and C.P. are alleged to be in state custody,
their custodial status does not preclude a finding that they have
standing to sue. Nonetheless, their claim of standing to sue for a
violation of the right to be "free from harm" is otherwise infirmed.</p>
<p>Children in state custody have a right to conditions of confinement
that bear a reasonable relationship to the purpose of their custody. <i>Marisol,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1">929 F. Supp. at 676</a>
("Individuals in state custody, however, do have a constitutional right
to conditions of confinement which bear a reasonable relationship to
the purpose of their custody) (citing <a href="https://scholar.google.com/scholar_case?case=3353749416334368664&hl=en&as_sdt=6,33&as_vis=1"><i>Jackson v. Indiana,</i> 406 U.S. 715, 738 (1972)</a>.)
And, as alleged by Plaintiffs, OCFS has stated that the "overarching
goal for each child in [foster] care is to identify safe and suitable
permanency options . . . within the context of safety and the child's
best interests." (Compl. ¶ 6.) That said, as a matter of law, the right
to be free from harm does not require that the government prove the
least restrictive, optimal placement, or optimal level of treatment. <i>Marisol,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1">929 F. Supp. at 675</a>
(collecting cases) ("Courts generally agree that the Fourteenth
Amendment does not require the state to provide children in foster care
with an optimal level of care or treatment" and thus "to the extent that
custodial plaintiffs allege a substantive due process right to a least
restrictive, optimal placement, their claims must be dismissed.")
Therefore, Plaintiffs must complain of more. Here, they do not.</p>
<p>With respect to "stranger foster care," Plaintiffs allege generally
that "social science data confirms that children placed with Kin
Caregivers generally fare better than children placed with strangers."
(Compl. ¶ 8.) Plaintiffs allege that children in stranger foster care
"have poorer school performance and are more susceptible to
homelessness, arrest, chemical dependency, and mental and physical
illness than children who remain with their families." (<i>Id.</i> ¶ 15.) In addition, Plaintiffs allege that the children in stranger foster care "experience approximately <i>three times</i>
as many placement moves as children in kinship placements," and
children in "kinship foster placements are two times more likely than
those in stranger foster homes to report positive emotional health." (<i>Id.</i> ¶¶ 148, 152.)</p>
<p>As to M.P. on this point, Plaintiffs allege only that M.P. remains at
the Children's Village, a residential treatment center ("RTC"), far
away from his home community. (<i>Id.</i> ¶¶ 52, 59.) Plaintiffs allege
that placement in institutional care allegedly "makes M.P. more
susceptible to poor school performance, homelessness, arrest, and aging
out of ACS custody without a permanent home." (<i>Id.</i> ¶ 59.) As to
J.R., Plaintiffs allege that because he has been twice moved to a foster
home, he lacks stability and these moves have been disruptive and
unsettling. (<i>Id.</i> ¶ 92.) Moreover, J.R. will allegedly transfer to
a new school in the middle of 5th grade and this will disrupt the
provision of his IEP services. (<i>Id.</i>) With respect to C.P., after
he was placed in a foster home, he "regressed significantly," such as
having difficulty sleeping. (<i>Id.</i> ¶ 110.)</p>
<p>The Court is not unsympathetic to these concerns. Nor does the Court
suggest that these concerns are somehow invalid. However, they
nonetheless suggest that the gravamen of Plaintiffs' complaint is that
the Government has not provided a least restrictive, optimal placement,
which does not constitute an injury to their right to be free from harm.</p>
<p>Indeed, one need only compare the allegations in this complaint to those in <i>Marisol,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1">929 F. Supp. at 670-71,</a>
which was cited by Defendants for the proposition that J.R., C.P. and
M.P. fail to allege a cognizable injury to the right to be free from
unreasonable intrusions into their emotional well-being because that
injury concerns the conditions of foster care, not just the fact that
one is in foster care. (Defs.' Mem. at 10.) There, the plaintiffs are
children who all suffered severe abuse and neglect. <i>See Marisol,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1">929 F. Supp. at 669-71</a>. For example, one plaintiff entered the foster care system after his mother died from HIV. <i>Id.</i>
at 670. The child was diagnosed with an AIDS-related illness, and was
transferred from a diagnostic facility to a group home that lacked the
medical staff needed to monitor his condition. (<i>Id.</i>) The Child Welfare Administration of the City of New York ("CWA") neglected to inform the agency of his medical condition. <i>Id.</i> This plaintiff was then placed in another group home, and CWA again failed to alert the agency of the child's condition. (<i>Id.</i>) When the agency notified CWA that the child needed hospice care, CWA directed staff to take him to the hospital. <i>Id.</i> He later died at the age of nineteen. <i>Id.</i> Another plaintiff was placed at a hospital, diagnostic center and a residential treatment center. <i>Id.</i> at 671. The child was then approved to be placed with a minister who sexually abused him. <i>Id.</i> The child ran away. <i>Id.</i> The child was then returned to the residential treatment center and attempted suicide twice and ran away. <i>Id.</i>
A third plaintiff spent his entire life in foster care, and exhibited
violent behavior, including attempting to rape of a nine-year old girl,
stabbing other children with pencils and lighting several fires. <i>Id.</i> at 672. He was then committed to a hospital as a "sexual predator," was placed in a group home and later ran away. <i>Id.</i> CWA failed to locate him. <i>Id.</i>
Against these factual allegations, the district court found that
because the custodial plaintiffs adequately alleged that they were
deprived of "even adequate or appropriate conditions of foster care
including certain basic necessities," and may pursue their substantive
due process claims based upon alleged violations of their right to be
free from harm. <i>Marisol,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1">929 F. Supp. at 676</a>.
Here, Plaintiffs allegations do not allege the same concerns of abuse,
neglect and trauma as reflected in the allegations of plaintiffs in <i>Marisol.</i></p>
<p>Plaintiffs' claim of an injury to the duration and conditions of
foster care is a curious one with respect to Plaintiffs M.P., J.R. and
C.P. These Plaintiffs are not complaining that they should not remain in
foster care. Rather, they argue that they should remain in foster care
i.e. in state custody, but with a specific relative. However, the
Fourteenth Amendment does not require the state to provide children in
foster care with an optimal level of care, but the conditions of
confinement must bear a reasonable relationship to the purpose of the
custody. <i>Marisol,</i> <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=18198217858159996699&hl=en&as_sdt=6,33&as_vis=1">929 F. Supp. at 676</a>.
Although Plaintiffs may believe that the optimal level of care is with a
specific relative, they are not entitled to this care as the state is
not required to provide as much. Plaintiffs fail to allege how their
placement in foster care in any way hinders the purpose of their
custody, which in part concerns placement in a healthy family
environment.</p>
<p></p><h2>B. Prudential Standing</h2><p></p>
<p>Prudential standing is a doctrine developed by the Supreme Court
under which courts may decline to adjudicate certain categories of cases
where Article III's constitutional minimum has been met. <i>See </i><a href="https://scholar.google.com/scholar_case?case=10267802236353784336&hl=en&as_sdt=6,33&as_vis=1"><i>Lexmark Int'l, Inc. v. Static Control Components, Inc.,</i> 572 U.S. 118, 126 (2014)</a>.
Where a case presents questions of both constitutional and prudential
standing, "we may assume Article III standing and address `the
alternative threshold question' of whether a party has prudential
standing." <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=10379059229424548940&hl=en&as_sdt=6,33&as_vis=1"><i>Phoenix Light SF DAC v. U.S. Bank Nat'l Assoc.,</i> 2021 WL 4515256, at *2 (2d Cir. Oct. 4, 2021)</a>
(summary order). The prudential standing rule "bars litigants from
asserting the rights or legal interests of others in order to obtain
relief from injury to themselves." <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=6330070291632056976&hl=en&as_sdt=6,33&as_vis=1"><i>McCarty v. The Bank of New York Mellon,</i> 669 F. App'x 6, 7 (2d Cir. 2016)</a>
(citation omitted). To satisfy the prudential standing requirement, a
plaintiff must assert "his [or her] own legal rights and interests[] and
cannot rest his claim to relief on the legal rights or interests of
third parties." <i>Id.</i> (citation omitted). There is, however, an
exception to third-party standing, which applies only where a plaintiff
can demonstrate "(1) a close relationship to the injured party and (2) a
barrier to the injured party's ability to assert its own interests." <a href="https://scholar.google.com/scholar_case?case=960857598526818556&hl=en&as_sdt=6,33&as_vis=1"><i>W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP,</i> 549 F.3d 100, 109 (2d Cir. 2008)</a>.</p>
<p>Here, Defendants argue that Plaintiffs do not qualify for prudential
standing because they seek to assert the rights of the Kin Caregivers to
be certified or approved as foster parents. (Defs.' Mem. at 14.)
Defendants additionally argue that Plaintiffs do not meet the exception
to the third-party standing rule. (<i>Id.</i>) Plaintiffs respond to
Defendants' prudential standing argument in a two-sentence footnote,
arguing that the Plaintiff children raise claims based upon their own
rights and injuries they have suffered, not those of the Kin Caregivers.
(Pls.' Opp'n at 4.)</p>
<p>However, as Defendants correctly point out, according to 18
N.Y.C.R.R. § 443.2 and 18 N.Y.C.R.R. § 427.6(b), Kin Caregivers, not the
Plaintiff children, have the right to apply for approval as a kinship
foster parent and if approved, to receive FCMP benefits. (Def. Mem. at
14.) Plaintiffs' claims directly challenge Defendants' alleged
unconstitutional disqualification systems and policies, which target the
criminal history and backgrounds of Kin Caregivers. Therefore,
Plaintiffs' complaint arguably asserts the legal rights and interests on
behalf of the Kin Caregivers.</p>
<p>With that said, Plaintiffs have not established that they qualify for
the exception to the prudential standing rule. There is no question
that the Kin Caregivers and Plaintiffs have a close relationship through
their familial ties. However, as Defendants argue, Plaintiffs have not
demonstrated that there is a hindrance or barrier for the Kin Caregivers
to assert their rights in Court and to protect their own interests by
challenging Defendants' policies as applied to them. (Defs.' Mem. at
14-15.) Indeed, Defendants identify examples of cases where relatives,
like the Kin Caregivers in this case, have raised challenges to the same
or similar disqualification policies. (<i>Id.</i> at 15.) Plaintiffs do not offer one. Plaintiffs have not established that there is prudential standing in this case.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[6]" name="r[6]">[6]</a></sup></p>
<p></p><h2>* * *</h2><p></p>
<p>The truth of the matter is that the disqualification systems
Plaintiffs complain of are a workaround that does not address any
concerns regarding the safety of the children, but only to deprive them
of the money, making children worse off. Notwithstanding the Court's
concern with the viability of the disqualification systems at issue
here, Plaintiffs in this case have not established standing.</p>
<p></p><h2>CONCLUSION</h2><p></p>
<p>For the foregoing reasons, Defendants' motion to dismiss is GRANTED
for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and
the complaint is dismissed in its entirety.<sup><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[7]" name="r[7]">[7]</a></sup></p>
<p>SO ORDERED.</p>
<small><p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r[1]" name="[1]">[1]</a>
The following facts taken from the complaint (Compl. ECF No. 1) are
assumed to be true for the purpose of deciding the instant motion.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r[2]" name="[2]">[2]</a>
Kin is defined under state law as "any individual related to a
half-sibling of the child through blood, marriage or adoption, and where
such person is also the prospective or appointed relative guardian of
such half-sibling <i>or</i> an adult with a pre-existing positive
relationship with the child including, but not limited to, a
step-parent, godparent, neighbor or family friend." (Compl. ¶ 156 n.4.)</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r[3]" name="[3]">[3]</a> Because Plaintiffs did not address this argument in their opposition, this argument can be deemed abandoned. <i>See, e.g., </i><a href="https://scholar.google.com/scholar_case?case=996134959528925891&hl=en&as_sdt=6,33&as_vis=1"><i>Spinnato v. Unity of Omaha Life Ins. Co.,</i> 322 F. Supp. 3d 377, 405 (E.D.N.Y. 2018)</a>
("A district court `may, and generally will, deem a claim abandoned
when a plaintiff fails to respond to a defendant's arguments that the
claim should be dismissed.'") (citations omitted).</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r[4]" name="[4]">[4]</a>
Plaintiff B.B. alleges that after ACS denied his maternal grandparents
foster parent certification in April 2020, ACS also informed the family
that B.B. would be removed from the home in June 2020. (Compl. ¶ 27.)
However, there are no allegations that ACS ever removed B.B. at that
time or at any point thereafter.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r[5]" name="[5]">[5]</a>
Under KinGAP, if a Kin Caregiver has been a child's foster parent for
at least six months, a Kin Caregiver will be given the legal
responsibility to care, control and supervise a child, and can receive a
subsidy. (Compl. ¶ 155.)</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r[6]" name="[6]">[6]</a>
Even if Plaintiffs had standing to sue, their claims against Governor
Hochul would warrant dismissal. "In making an officer of the state a
party defendant in a suit to enjoin the enforcement of an act alleged to
be unconstitutional, it is plain that such officer must have some
connection with the enforcement of the act[.]" <a href="https://scholar.google.com/scholar_case?case=15822732193533819720&hl=en&as_sdt=6,33&as_vis=1"><i>Ex parte Young,</i> 209 U.S. 123, 157 (1908)</a>.
A state governor does not meet this exception solely "based upon the
theory that [s]he, as the executive of the state, was, in a general
sense, charged with the execution of all its laws." <i>Id.</i>
Plaintiffs simply allege that "the Governor is required to execute laws
and, therefore, is responsible for ensuring that all New York executive
departments and agencies, including OCFS and the local departments of
social services that OCFS supervises, such as ACS, comply with all
applicable federal and state laws." (Compl. ¶ 133; Defs.' Mem. at 17.)
Such bare allegations are insufficient to establish that Governor Hochul
had any connection or role in administering the complained of
disqualification systems or foster/adoptive parent assessments.
Therefore, the claims against Governor Hochul are dismissed. <i>See, e.g., </i><a href="https://scholar.google.com/scholar_case?case=5289648421032679187&hl=en&as_sdt=6,33&as_vis=1"><i>Wang v. Pataki,</i> 164 F. Supp. 2d 406, 410 (E.D.N.Y. 2001)</a>
(dismissing plaintiff's claims against the governor because "the
general executive duty of the [g]overnor does not provide a basis for a
claim against him" and plaintiffs "fail to show that the [g]overnor has
any connection with the enforcement of the [statute] other than the
general duty to take care that the laws be faithfully executed"); <i>see also </i><a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=2183616643416647534&hl=en&as_sdt=6,33&as_vis=1"><i>Spiteri v. Russo,</i> 2013 WL 4806960,</a>
*18 (E.D.N.Y. Sept. 7, 2013) (dismissing claims for injunctive relief
against Governor Cuomo because plaintiff failed to plead facts
demonstrating that he had "direct involvement with [p]laintiff's
classification as a sex offender"); <a class="gsl_co_link" href="https://scholar.google.com/scholar_case?about=16723863853789442480&hl=en&as_sdt=6,33&as_vis=1"><i>Disability Rights New York v. New York State et al,</i> 17-CV-6965-RRM-SJB, 2019 WL 2497907, at *18, 23 (E.D.N.Y. June 14, 2019)</a>
(dismissing claims against former Governor Cuomo for violations of the
ADA and Section 504 of the Rehabilitation Act because plaintiff's
allegations did not outline the former Governor's role in these
violations and fail to allege how the relief sought could be implemented
by the former Governor). Therefore, all claims against Defendant Hochul
are dismissed.</p>
<p><a class="gsl_hash" href="https://scholar.google.com/scholar_case?case=6189630028413112015&hl=en&as_sdt=6&as_vis=1&oi=scholarr#r[7]" name="[7]">[7]</a>
Because the Court dismisses Plaintiffs' complaint under Rule 12(b)(1),
the Court does not reach Defendants' additional arguments for dismissal
under Federal Rules 12(b)(6) and 12(b)(7)."</p></small><div class="blogger-post-footer">From http://jmpattorney.blogspot.com/</div>Jon Michael Probstein, Esq.http://www.blogger.com/profile/02516067937381017755noreply@blogger.com0