Wednesday, November 13, 2013

Hobson's Choice

The interesting part of practicing law and litigation in particular is all of the interesting people that you meet, including the judge's. This morning, I was introduced to Hobson's Choice by the judge who I was appearing before.

For it seems that the reason the Defendant was not present in Court this morning was because of an open desk appearance ticket that was also scheduled for today in Criminal Court (I was in a civil court part). So as presented to me by the Court, the Defendant had two options, neither of which was particularly good for him. Even after attempting to call the Criminal Court to see if Defendant was actually there, the Court decided to take the safe approach and adjourn the case for a few weeks.

As the Court reasoned, the Defendant really didn't have a choice - he had to go to Criminal Court. My argument to the contrary, of course, was that the Defendant certainly had the choice not to commit at least 2 crimes since the last court date, the charges for which happened to be put on the Criminal Court's calendar for today. While the Judge agreed that we all have choice and no one forced the Defendant to commit crimes, we're adjourned for a few weeks and my client's Thanksgiving just became a little more stressful.

Friday, October 11, 2013

Default Judgments Coming Home to Roost

It was bound to happen that the spate of default judgments that seemed to come across my desk this year would finally rear their heads again at some point. Even for prospective clients meeting with me for the first time, it appears that 2013 has been the year of the default judgment.

The first candidate across the desk was the dangerous combination of a default judgment in Family Court, especially where the default was used to establish paternity of a child and enter a significant award of child support and arrears. Waiting for the passage of time and hoping that the Court would forget about the case has not done the prospective client much good...

The second candidate arrived on the wings of information subpoenas and restraining notices. Not surprisingly, when the Defendant's bank account got restrained, my telephone started ringing off the hook to see how to get their money back. Luckily, the Court granted the emergent order to lift the restraint, but now there is a whole new case to worry about.

And then the third candidate has been arriving day after day, where an attorney seeking to vacate a default judgment (which, incidentally, I don't think the Court even entered yet) seems to send the same set of papers to my office repeatedly. No calendar or motion date scheduled yet, just a stack of papers with the same citations to some old (and overruled) case law.

Friday's moral of the story: don't let a default judgment be taken against you.

For more information or to set up a consultation, please call me at 718.568.0221 (New York clients) or 908.698.0417 (New Jersey clients), or visit my website (

Wednesday, October 9, 2013

Confirmation of Supervised Visitation, Mental Health Evaluation and Sua Sponte Orders of Protection in New York Family Court




Pursuant to an Order of Reference, this matter was referred to a Court Attorney Referee to hear and report.

On July 2, 2013, the Court Attorney Referee issued a Report with recommendations regarding custody and visitation for the subject children, [Child #1], born on [], and [Child #2], born on []. (See, Civil Practice Law and Rules §4320 [b]). The Report contains the following recommendations: (1) that [Mother] undergo a full psychiatric assessment, and that she be directed to comply with any recommendations made by the psychiatrist, including therapy and medication as a component to a parenting plan; (2) that the current visitation schedule be modified to therapeutic supervised visitation, to be supervised by a therapeutic social worker and that the social worker provide reports to the court every 90 days, with [Mother] paying for the therapeutic supervised visitation. Counsel should have access to the reports upon request, and that counsel may review the reports with the parties but not provide copies of the reports to the parties. The Court Attorney Referee recommends that the visitation be community based and at dates and times as arranged with the social worker and parties for a minimum of six (6) hours of visitation bi-weekly, with additional visitation if scheduling and finances allow. The Court Attorney Referee recommended that [Mother] be given the opportunity to submit financial documentation regarding her ability to pay for the visitation; *1 (3) that the other portions of the [2012] order should be continued, including the order that [Mother] may only attend the children's activities during her parenting time, that she not have contact with the children's babysitters or other third party providers providing services to the children, that [Mother] not attempt to contact or otherwise interact with the children's school faculty, staff or other support members, that [Mother] not attend mass at [] Catholic Church in [], New York on Sundays so long as the children attend that church, and that neither parent discuss the court proceedings or litigation with the children nor disparage the other parent in the presence of the children; (4) that the Court issue an Order of Protection against [Mother] on behalf of the children and [Father] directing that [Mother] not assault, menace, harass or engage in any unlawful conduct against them, that she be directed to stay away from the children and their school subject to court ordered visitation, that she not use any corporal punishment on the children or discuss the litigation with the children; the Court Attorney Referee recommends that the Order of Protection remain in effect until the younger child [Child #2] reaches the age of 18, which will be on [] 2019.

On July 18, 2013, [Father]'s attorney filed a motion asking the court to confirm the Court Attorney Referee's findings and recommendations. *2 On July 30, the Attorney for the Children filed an Affirmation in Support of [Father]'s motion, and joined in his application that the court confirm the Court Attorney Referee's July 2,2013 Report.

On July 30, 2013, [Mother]'s attorney filed a Notice of Motion (Crossmotion) asking this Court to reject (in whole or in part) the Court Attorney's report, and to order a new hearing. *3 This Court finds the Motion (Crossmotion) to be without merit.

Upon review of the very detailed report of the Court Attorney Referee and the voluminous record of the proceedings, including the transcripts of the lengthy hearing, this Court adopts the Court Attorney Referee's findings of fact, and confirms the Court Attorney Referee's report and recommendations.

A Court may appoint a referee to hear and determine an action or specific issues, or, alternatively, appoint a referee to hear the evidence and report to the Court (Civil Practice Law and Rules §§4001, 4301, 4311, 4320 [reference to report]; see generally, 8 Weinstein-Korn-Miller, NY Civil Prac ¶4301.02 at 43-6). Insofar as relevant, Civil Practice Law and Rules §4403 provides that:

Upon the motion of any patty or on his [her] own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing. * * * Where no issues remain to be tried the Court shall render decision directing judgment in the action.

Civil Practice Law and Rules §4403 provides a procedural mechanism by which any party to an action in which a Referee has been appointed to report may seek a judicial decree confirming or rejecting the Referee's report. See Galiber v. Previte, 40 NY2d 822, 824 (1976); O'Donnell v. O'Donnell, 80 AD3d 586 (Second Dept., 2011); Wilderv. Wilder, 55 AD3d 1341 (Fourth Dept., 2008); Sillah v. Tanvir, 18 AD3d 223, 224 (First Dept., 2005) leave toappeal denied by 5 NY3d 711 (Court of Appeals, 2005); Sidoti v. Degliuomini, 10 AD3d 396 (Second Dept., 2004); Thomas o/b/o Hamlin Park Community & Taxpayers'Association v. Murphy, 2 AD3d 1404 (Fourth Dept., 2003).

"It is well settled that the report of a Special Referee shall be confirmed whenever the findings contained therein are supported by the record and the Special Referee has clearly defined the issues and resolved matters of credibility." Nager v. Panadis, 238 AD2d 135 (First Dept., 1997); Marcano v. U-Haul Co. ofVirginia, 82 AD3d 479 (First Dept., 2011); Taveras v. General Trading Co.,Inc., 73 AD3d 659 (First Dept., 2010) (A referee's report will be confirmed if his/her findings are supported by the record. The Appellate court will defer to the referee's determination, particularly where it turns upon an assessment of the witnesses' credibility); Cooke v. 3Flanagan, 52 AD3d 257 (First Dept., 2008); Lee v. Solimano, 34 AD3d 299 (First Dept., 2006); Baker v. Kohler, 28 AD3d 375 (First Dept., 2006) leave to appeal denied by 7 NY3d 885 (Court of Appeals,2006); (The report of a referee should be confirmed if its findings are supported by the record); Simons v. Ross, 309 AD2d 667 (First Dept., 2003). In the instant case, the findings of fact and conclusions of law made by the Court Attorney Referee, including her credibility findings, are supported by the voluminous record, which includes all transcripts and the very large court record.

Now, after examination and inquiry into the facts and circumstances of the case, it is hereby:

ORDERED, that the Court Attorney Referee's [2013] Report is confirmed;

ORDERED, that [Mother] shall not file any pleadings, including petitions, orders to  show cause and motions without prior written approval of the court;

ORDERED, that [Father]'s petition filed on [2012] to modify the order of visitation (docket #s []) is granted as follows:

(1) [Mother] shall undergo a full psychiatric assessment and comply with any recommendations made by the psychiatrist, including therapy and medication as a component to a parenting plan;

(2) The current visitation schedule is modified to therapeutic supervised visitation, to be supervised by a therapeutic social worker. The social worker shall provide reports to the court every 90 days, with [Mother] paying for the therapeutic supervised visitation. Counsel may have access to the reports upon request. Counsel may review the reports with the parties but shall not provide copies of the reports to the parties. The visitation shall be community based and at dates and times as arranged with the social worker and parties for a minimum of six (6) hours of visitation bi-weekly, with additional visitation if scheduling and finances allow;

If [Mother] wishes the Court to determine her ability to pay for the supervised visitation, she must submit the following financial documents to the court by October 10, 2013: the last four years federal and New York State income tax returns (including all attachments and schedules), a notarized financial disclosure affidavit, and copies of all bank statements and brokerage statements for the past three years. [Mother] must also submit a notarized letter setting forth how she currently supports herself, as well as an accounting of the money she received from the sale of a home to [Witness] in 2006.

Regarding the person who will be supervising the visits, the visitation can be supervised by Comprehensive Family Services or by a social worker who is approved by the Appellate Division, Second Department. All counsel must confer with their clients and may consent to one supervisor and submit the name to the court jointly for the issuance of an order. If there is no consent, each attorney must submit the name of a supervising agency or social worker to this Court for the Court's selection and issuance of an order. These submissions must occur by October 10, 2013.

(3) The other portions of the [2012] order shall be continued, including the following:

(a) [Mother] may only attend the children's activities during her parenting time;

(b) [Mother] shall not have contact with the children's babysitters or other third party providers providing services to the children;

(c) [Mother] shall not attempt to contact or otherwise interact with the children's school faculty, staff or other support members;

(d) [Mother] shall not attend mass at [] Catholic Church in [], New York on Sundays so long as the children attend that church

(e) Neither parent shall discuss the court proceedings or litigation with the children nor disparage the other parent in the presence of the children.

(4) This Court shall issue an Order of Protection against [Mother] on behalf of the children and [Father] ordering [Mother] to not assault, menace, harass or engage in any unlawful conduct against them, ordering that she stay away from the children and their school subject to court ordered visitation, ordering that she not use any corporal punishment on the children, and ordering her to not discuss the litigation with the children. The Order of Protection shall remain in effect until the younger child [Child #2] reaches the age of 18, which will be on [2019].

This constitutes the Decision and Order of the Court.



September [], 2013

*1 The Court Attorney Referee noted that [Mother] had private counsel during the course of the proceedings, and that she should be given an opportunity to submit the following financial documentation to the court to determine her ability to pay for the supervised visitation within two weeks of the date of confirmation of her report: the last four years income tax returns, a notarized financial disclosure affidavit, and copies of all bank statements and brokerage statements. The Court Attorney Referee also recommends that [Mother] be directed to submit a notarized letter setting forth how she currently supports herself, as well as an accounting of the money she received from the sale of a home to one [Witness] in 2006.

*2 Attached to the motion papers is an Affirmation of Service stating that Mr. [] ([Mother]'s attorney) and Mr. [] (the Attorney for the Children) were served with the motion papers via overnight delivery service (Federal Express).

*3 On July 19, 2013, [Mother]'s attorney submitted a letter to the court indicating that he recently moved to a new office and that he only received the C0urt Attorney Referee's forty-six page report on Wednesday, July 17,2013. He stated his intent to move to reject in whole or in part the Referee's Report as expeditiously as possible. A copy of the letter was also sent to [Mother], Mr. Ayers (the father's attorney) and Mr. [] (the Attorney for the Children). Despite the fact that [Mother]'s attorney did not file his motion with fifteen days after the filing of the Referee's Report, as mandated by CPLR § 4403, this Court has reviewed and considered the Notice of Motion (Crossmotion) that was filed on July 30,2013.

Friday, October 4, 2013

Denial of Objections to Counsel Fee Award in New York Family Court



Family Court Act ("FCA") Section 439 (a) empowers Support Magistrates to "hear, determine and grant any relief within the powers of the court" in proceedings properly before them. FCA Section 439(e) provides that the Support Magistrate's determination "shall include findings of fact and a final order." The parties are permitted by statute to submit "specific written objections" to the final order for "review" by a Family Court Judge.

The Family Court Judge's "review" is a narrow one. It is the Support Magistrate, and not the reviewing Judge, who was present at the evidentiary hearing and was, therefore, uniquely able to evaluate both the evidence and the credibility and demeanor of witnesses prior to making an order. Given the above, the scope of the Family Court Judge's "review" is confined to an inquiry as to whether the Support Magistrate has made the necessary Findings of Fact and an Order, and upon review of the record, whether there is a reasonable basis for the Support Magistrate's order.

On July 19,2013, this Court did issue a Decision and Order on Objection in which it set forth that part of the parties' extensive litigation history as was relevant to the issue of child support. (See, Order of July 19, 2013 which is incorporated herein). Any further relevant portions of the record were obtained from the court file including the findings of fact as well as the audio recording of the proceedings.

On May 13, 2013, Respondent-Father's motion for counsel fees was before Support Magistrate []. Respondent-Father appeared together with counsel before Support Magistrate []. There was no appearance by Petitioner-Mother when the case was called at 9:24a.m. and no communication had been received from her. A hearing was held with respect to Respondent-Father's motion for counsel fees. Respondent-Father testified that he retained Mr. Ayers as his counsel and submitted their retainer agreement which was received in evidence. Respondent-Father testified that he incurred counsel fees of $62,221.52 in connection with the numerous petitions and applications filed by Petitioner-Mother seeking a reduction, termination, suspension of the child support order, adjustment of arrears, refund of overpayments, a petition seeking an award of child support to her, as well as numerous orders to show cause, motions and subpoenas filed by Petitioner-Mother, the prosecution of his enforcement petition and motion for counsel fees herein and the repeated adjournments occasioned by Petitioner-Mother.

Respondent-Father testified that since July 2011 he has appeared 23 times in court always ready to proceed. The Support Magistrate took judicial notice of the court dates and proceedings under the instant docket, as well as other child support dockets involving the parties. *1 Respondent- Father submitted the billing records and invoices from his counsel and testified that these services provided by counsel were necessary to successfully litigate these matters. Respondent-Father submitted his financial disclosure affidavit and his 2012 tax return which were received in evidence by the Support Magistrate and testified that Petitioner-Mother had the financial means to pay the requested legal fees. At the conclusion of the hearing, the Support Magistrate reserved decision. Thereafter, on July 9, 2013, the Support Magistrate issued an order which granted Respondent-Father's motion for counsel fees and awarded him counsel fees of $50,000, payable by Petitioner-Mother directly to Respondent-Father by check or money order at $192 weekly, commencing August 1, 2013 until satisfied.

On August 14, 2013, Petitioner-Mother filed a timely *2 objection together with an affidavit of service upon Respondent-Father's counsel. Her objection consists of 35 pages, the majority of which is addressed to her litany of complaints of misconduct by lawyers and abuse of discretion and bias by jurists in her divorce, custody and support matters since 2002, to which she has annexed 38 pages of prior orders and decisions from Family Court and Supreme Court together with an affidavit of service for the Appellate Division Second Department. In essence, as is relevant, Petitioner-Mother objects to the Support Magistrate's order directing her to pay legal fees which she claims were awarded in the absence of any evidence or hearing, further claims that the court was without jurisdiction to award counsel fees because Petitioner-Mother was never served with the violation petition and that she was never served with papers for a hearing on Respondent-Father's motion for legal fees and was never provided with papers detailing the work done by counsel. Petitioner-Mother maintains that she was never sent notice of the May 13 court date, her modification petition was dismissed and counsel fees awarded even though she was present in the courthouse, but not called into the courtroom. Additionally, Petitioner-Mother objects that the Support Magistrate is biased against her, as were Judge [] and the other judges, referees and magistrates in Queens courts which cumulatively have prevented her from getting fair rulings and she is seeking to have the judgment of divorce vacated or modified as it too was based on fraud. Petitioner-Mother alleges misconduct by attorneys on the Assigned Counsel Panel who represented her on the support and custody matters.

On August 22, 2013, Respondent-Father, by his counsel filed a timely rebuttal together with a valid affirmation of service upon Petitioner-Mother. Counsel for Respondent-Father maintains that the objection was improperly served upon his office by Petitioner-Mother, a party to the action and should be dismissed. Additionally, counsel contends that Petitioner-Mother was served with the violation petition as was determined by Support Magistrate who conducted a traverse hearing, counsel fees were properly awarded based upon Respondent-Father's testimony and documentary evidence supported by him at the hearing before the Support Magistrate which preceded upon Petitioner-Mother's default upon her failure to appear.

NOW, after consideration of the facts and circumstances of this case, Petitioner-Mother's objection is denied and Respondent-Father's rebuttal is granted for the following reasons.

Pursuant to FCA § 439(e), a party filing an objection must serve a copy of such objection upon the opposing party and file proof of service with the court at the time of the filing of the objection. On January 4, 2013, the Honorable Judge [] issued a written order which prohibited Petitioner-Mother from utilizing mail service and directed that all future petitions, orders to show cause, motions and objections filed by Petitioner-Mother must be served by personal service upon Respondent-Father through his attorney at the attorney's law offices, and that proof of service must include a signed acknowledgment of receipt. (See, Order of January 4, 2013 which is incorporated herein). The Affidavit of service submitted with Petitioner-Mother's objection reflects that it was served by Cyril Penn by mail upon Respondent-Father's attorney. On the right hand side of the affidavit the following words, in a different handwriting were handwritten in "served by mail and in person Ayers 540 President St. Brooklyn". There is no signature or attestation under these words and no affidavit of personal service has been submitted together with the objection. Counsel for Respondent-Father avers in his rebuttal that it was Petitioner-Mother *3 who "dropped off' the objection at his office on August 14,2013. CPLR § 2103(a) mandates that only a non-party to the action may serve papers. Service of process by the party himself/herself is a non-waivable jurisdictional defect rendering the action subject to dismissal. Additionally, a signed acknowledgment of receipt by Respondent-Father's counsel has not been submitted by Petitioner-Mother as proof of service as is required pursuant to Judge []'s order of January 4, 2013. Therefore, the affidavit of service is defective and the objection must be denied.

Even were this court to reach the merits of Petitioner-Mother's objection regarding the award of counsel fees, a review of the record reflects that the Support Magistrate properly proceeded to a hearing on Respondent-Father's motion for counsel fees upon Petitioner-Mother's default for failing to appear in court as directed and as referenced in this Court's prior Decision and Order on Objection dated July 19, 2013. The Support Magistrate conducted a hearing at which she received testimony and evidence on Respondent-Father's motion for counsel fees. Once an order is entered upon a party's default, s/he may not seek relief by the filing of an objection pursuant to FCA § 439(e). Rather, Petitioner-Mother must seek relief from the order pursuant to CPLR § 5015 by making a motion to vacate the default. See, Garland v. Garland, 28 AD3d 481 (2nd Dept., 2006); Kondratyeva v.Yapi, 13 AD3D 376 (2nd Dept., 2004); Matterof Widerman v. Murley, 155 AD2d 841 (3rd Dept., 1989); Menaldino v. Johnson, 162 AD2d 758 (3rd Dept., 1990). As such, the court is unable to determine the merits of the objection and it is therefore denied.

With respect to Petitioner-Mother's objection regarding lack of notice of Respondent-father's motion for counsel fees *4 it appears that Petitioner-Mother is raising this issue for the first time in her objection. The law is clear that a party may not submit proof now and argue factual matters in his/her objection which s/he failed to offer proof of at a hearing before the Support Magistrate. See, Matter of Rzemieniewska-Bugnacki v. Bugnacki, 51 AD3d 1029 (2nd Dept., 2008); Redmondv. Easy, 18 AD3d 283 (1st Dept., 2005); Lahrs v. Lahrs, 158 AD2d 944 (4th Dept., 1990). In any event, Petitioner-Mother's claim is again belied by her application before the Support Magistrate on April 3, 2013 for an adjournment to return with counsel to represent her on her modification petition and Respondent-Father's motion for counsel fees after the violation petition was settled on the consent of both parties, without prejudice to Respondent-Father's right to seek counsel fees. Ironically, in her objection she complains that Mr. [] her appointed counsel on the violation petition settled that matter but "refused to do the hearing on the legal fees." *5 Petitioner-Mother's objection is without merit and is denied.

With respect to Petitioner-Mother's objection regarding the Court's lack of jurisdiction over the violation proceeding (Docket F[]), that specific objection as well as objections of bias by the Support Magistrate and ineffective assistance of counsel were previously denied by Decision and Order of the Honorable Judge [] on January 4, 2013. (See, Order of January 4, 2013 which is incorporated herein). Any further objection by Petitioner-Mother is untimely and is therefore denied.

With respect to Petitioner-Mother's objection regarding dismissal of her modification petition (Supplement "I), including her claims of not having been provided notice of the court date and the scheme by Court personnel to call her cases, including the hearing for counsel fees, without her, those objections were previously addressed and denied by this Court in its decision of July 9, 2013 and are adopted herein by reference. Any further objections are denied as untimely.

With respect to Petitioner-Mother's objection that the Support Magistrate has demonstrated a bias toward her, this Court finds no evidence or demonstration of bias by the Support Magistrate. Therefore, this objection is without merit and is denied.

With respect to Petitioner-Mother's remaining objections regarding bias by other jurists toward her as well as vacating or modifying her divorce judgment, this Court is without authority to address these matters. In any event, Judge []'s Order was affirmed by the Appellate Division in []. Petitioner-Mother's objections are therefore denied.

WHEREFORE, by reason of the foregoing, Petitioner-Mother's objection is denied and Respondent-Father's rebuttal is granted.

This constitutes the decision and order of this court.

Notify parties and counsel.

Notify Support Magistrate []

Notify SCU.



*1 The instant docket was filed by Petitioner-Mother on June 6, 2011 and contains 9 supplemental petitions (Supplement "A" through "I"). Docket F-[] was filed by Respondent-Father on March 7, 2012, seeking enforcement of the order of child support. Docket F-[] was filed on March 19, 2012 by Petitioner-Mother seeking an award of child support from the custodial parent Respondent-Father.

*2 On July 15, 2013 counsel for Respondent-Father filed a Notice of Entry of the Support Magistrate's July 9, 2013 Order, together with an affirmation of service upon Petitioner-Mother. Additionally, the court file reflects that the order for counsel fees was mailed to the parties on August 13, 2013. Therefore, the objection is deemed timely pursuant to FCA §439(e).

*3 While this court can appreciate that Petitioner-Mother is pro se and might have misconstrued Judge []'s order of January 4, 2013 that Respondent-Father's counsel be personally served by her, such misunderstanding is belied by the fact that Petitioner-Mother had arranged for someone other than herself to effectuate service of the instant objection, of her prior objection decided by this court, and of her matters to the Appellate Division and therefore is clearly aware that she, as a party may not serve papers relating to her own proceedings.

*4 Respondent-Father's counsel filed a motion for counsel fees under the instant docket on December 20, 2011 which contained an affirmation of service upon Petitioner-Mother's counsel. Respondent-Father's counsel filed a Notice of Cross Motion on April 4, 2012 which included a request for counsel fees and which includes an affirmation of service by Overnight Delivery Service (Federal Express) upon Petitioner-Mother which is dated April 4, 2012.

*5 Page 6 of Petitioner-Mother's objections.

Wednesday, September 25, 2013

R.I.P. to a Wonderful Client

It is relatively rare that a phone call can bring my day to such a halt, but just minutes ago I found out that one of my favorite clients passed away. She had been sick, but had also been doing much better. Last Monday, she was on her way to the Brooklyn office to sit down with me for some wrap up on one of her cases, but she called to say she wasn't feeling well and was going to see a doctor. She was supposed to call me back this week to let me know how it all went and to pick a new time to come meet with me. Instead, I got a call from her son that she had passed away.

It's been a pretty good week and I got some good results, but right now, I'm just going to step back from the desk for a few minutes and take a walk.

Wherever you are Ms. D, I hope it's a peaceful and wonderful place, because you deserve all the happiness in the world.

Monday, September 16, 2013

Showing Up and Actually Reading the Law

And so another week begins with an entertaining Monday morning argument (they always seem to really brighten the beginning of the week). At least this time, the adversary showed up. I've had far too many defaults over the summer to be surprised anymore when no one from the other side shows up.

This morning's fun began when my adversary arrived and began some sort of schtick that revolved around the basic premise that he had been practicing law for much longer than I had and that this was all a waste of time. It was his opinion that my client should just walk away and not get a dime, why would we even waste our time in court? Wasting our time was a good preface to the rest of the morning.

This was a matrimonial case and for reasons unbeknownst to me, my adversary, and his significantly vast years of experience, didn't bring his client with him to Court. When the Judge asked why he wasn't there, the response was that the attorney didn't think he had to be there since he lived out of state and so he didn't come, which is an odd statement from someone who supposedly has a lot of experience in this area. And this is where the waste of time rolled in, since we were unable to do any proceedings without his client.

The moral of the story is, of course, to make sure and check the judge's rules before you presume that you (or your client) doesn't have to appear. Because he didn't, I got a long rainy commute to waste my Monday morning.

For more information on matrimonial proceedings or to schedule a consultation, please call me at 718.568.0221 or 908.698.0417, or visit my website ( for more information.

Wednesday, August 28, 2013

Emergency Applications & Notice Requirements

As I'm doing more set up work on my soon to open office in New Jersey, I get a call from a New York court that a pro se litigant on one of my cases is at the court filing an emergency application, which I supposedly received notice of on Saturday. Being a bit concerned, and pointing out to the clerk that my office was not open on Saturday and that I did not have notice of the application, I decided to open up the file and see what is going on in the case.

The clerk and I had a lengthy discussion about the history of the particular case and it became clear that I was now arguing an ex parte application that I had no knowledge of or chance to review prior to the telephone call. This also brought me back to the Appellate Division's own rules for applications, specifically § 670.5 (e):
(e) Except as hereinafter provided, when an order to show cause presented for signature makes provision for a temporary stay or other interim relief pending determination of the motion, or when an application is presented pursuant to CPLR 5704, the party seeking such relief must give reasonable notice to his or her adversary of the day and time when, and the location where, the order to show cause or CPLR 5704 application will be presented and the relief being requested. If notice has been given, the order to show cause or the application pursuant to CPLR 5704 must be accompanied by an affidavit or affirmation stating the time, place, by whom given, the manner of such notification, and to the extent known, the position taken by the opposing party. If notice has not been given, the affidavit or affirmation shall state whether the applicant has made an attempt to give notice and the reasons for the lack of success. If the applicant is unwilling to give notice, the affidavit or affirmation shall state the reasons for such unwillingness. An order to show cause providing for a temporary stay or other interim relief or an application pursuant to CPLR 5704 must be personally presented for signature by the party's attorney or by the party if such party is proceeding pro se.

Despite the Appellate Division's clear rules, the other party refused to comply with the provisions and now I am awaiting a call back to see if the Court even entertained the application. It is unfortunately the nature of the beast when dealing with a pro se litigant that they inevitably ignore the rules, whether maliciously or inadvertently, and cause me quite a headache.

For more information on emergency applications or to schedule a consultation, please call me at 718.568.0221 or 908.698.0417, or contact me through my website (

Wednesday, August 14, 2013

Visitation is a Right, Not an Obligation

I have been working on a pro bono case for about a year now, which started out in a positive manner, but has devolved rather quickly. The basic scenario is that a father wanted a court ordered visitation plan to see his children because the informal arrangements that he and the children’s mother had been using just weren’t working anymore. He’s a veteran of the Desert Storm and seems genuinely concerned about seeing his children.

So as the case progresses, the wrinkles begin to pop up. Even though the Court has set up an initial schedule to see his children, there is always an excuse why he can’t make it for his scheduled time. As a result, I check in with him each week to see how the visitation went, and each week, there is another excuse as to why he couldn’t see his children.

It should go without saying that the judge is now not happy at all that a preliminary schedule has been set and the father seems to never make it to see his children. Last week, at our most recent court appearance, the judge vented his frustration at the current situation and my client’s seeming inability to actually see his children, despite the preliminary schedule.

With that, a whole new schedule has been set up, one which my client is not a fan of, but which will require him to “RSVP” if he actually intends to exercise his visitation. As the Court advised him, his visitation is a right, not an obligation, but he should find a way to exercise his right if he really wants to see his children.

It’s turned out to be a very tough case to participate in because for each step forward, it feels like we take two steps back.

For more information regarding visitation with your children or to schedule a consultation, please call me at 718.568.0221 or 908.698.0417 or visit my website,, for more information.

Wednesday, August 7, 2013

Witness Preparation at the Last Minute

While I was enjoying a coffee and waiting for a client at a local cafe, I was forced to listen to two gentleman discuss an upcoming trial (I think everyone was forced to listen to these two as they spoke at a volume appropriate for a wind tunnel). The best I could tell, there is going to be a trial in the next week or so, and these two were loudly discussing their trial testimony, to make sure that both of their stories matched up.

It was a particularly interesting discussion for me because the one gentleman repeatedly told the other that their lawyer didn't know what he was doing and that the two of them were really on the same team and had to make sure their stories were in sync. From the conversation, I got the impression that the lawyer they were discussing may not have been representing both of them, but rather only one of them and had advised that one to testify in a certain manner. My further guess is that the testimony would not be particularly helpful to the second man if the testimony went the way that the attorney thought it should.

So I am sitting here cringing, in advance, for the unnamed lawyer who is about to have a true circus on his hands when, if the outcome of this conversation holds true, his witness totally changes his story to protect the second man. Maybe I was even watching some good old fashioned witness tampering just blocks from the courthouse?

Whatever the outcome, the loud, public conversation was yet another reminder of the importance of preparing any witness for testimony they may have to give.

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Monday, August 5, 2013

Failure to Pierce the Corporate Veil/Dismissal of Individual Defendant in New York Supreme Court




By notice of motion dated November 26, 2007, plaintiffs [] move pursuant to CPLR §3212 seeking summary judgment on the issue of liability. Alternatively, [Plaintiffs] seeks an order pursuant to CPLR §3126 precluding [Defendants] from offering certain evidence at trial. Defendants, by notice of cross-motion dated January 16, 2008, seek an order: 1) pursuant to CPLR §3025 (b) granting them leave to amend their answer so as change an admission to a denial and add a counterclaim against plaintiffs; 2) an order pursuant to CPLR §1003, dismissing all claims against [Individual Defendant], and 3) an order pursuant to 22 N.Y.C.R.R.§130-1.1 awarding defendants fees and costs in connection with plaintiffs' motion. 

This action arises out of a contractual dispute between the parties for renovation partially performed at plaintiffs' two-family residence located [], Brooklyn, New York. The contract dated June 19, 2006 obligated [Defendants] to perform certain construction and/or renovations at the [Plaintiffs’] residence, for the total sum of $105,000. [Plaintiff] paid [Defendant] $95,000.00 towards this balance between July 11, 2006 and December 22, 2006, however [Plaintiff] claims that minimal work has been performed by defendants, that it was performed in an unworkmanlike manner, and that substantial improvements for which defendants were obligated have not been performed. As a result, on or about March 8, 2007, plaintiffs commenced an action against [Defendant] and its president [Individual Defendant] for, among other things, breach of contract and fraud.

On or about April 25, 2007, defendants' former counsel served an answer to the complaint interposing three counterclaims for unpaid services rendered and for unpaid invoices. Defendants' answer also admitted that the parties entered into the contract for the construction/renovation services and that "said services were to be performed in a good and workmanlike manner and in accordance with the agreement of the parties." In the counterclaims, defendants alleged that plaintiffs breached their duties and obligations under the contract and that plaintiffs failed to pay certain "costs and damages incurred by defendants arising out of delays caused by plaintiff[s] at the Project."

Defendants' former counsel also served a Notice to Take Deposition Upon Oral Examination of each plaintiff, designating the date of June 29, 2007 for the depositions. However, the parties appeared before the court for a preliminary conference on that date, and the following discovery schedule was ordered by the court:

(1) Note of issue filing deadline: May 12, 2008;
(2) Next compliance conference hearing date: March 7, 2008;
(3) Examinations before trial of all parties to be held on September 17, 2007;
(4) Plaintiffs to provide their bill of particulars and other written discovery responses within 45 days after the date of the order;
(5) Defendants to provide their bill of particulars as to their affirmative defenses within 45 days after the date of the order;
(6) Insurance information to be provided by defendants by no later than July 30, 2007; and
(7) Defendants to provide invoices, bills, receipts relative to materials and time sheets of employees performed on subject job. (No deadline was stated for compliance with number 7.)

While the preliminary conference order provided that, in the event of non-compliance therewith, "costs or other sanctions may be imposed," it contained no specific warning pursuant to CPLR §3126 that failure to comply with discovery would result in an order of preclusion. 

On July 18, 2007, plaintiffs served a response to defendants' discovery demands and defendants never objected to these responses.

On or about August 10, 2007, defendants discharged their attorney who had prepared the answer and appeared for the preliminary conference. On or about September 12, 2007, defendants' incoming counsel obtained the entire case file with the exception of a copy of the preliminary conference order from outgoing defense counsel, including a letter dated September 7, 2007, wherein plaintiffs' counsel advised defendants' former attorney that defendants had failed to respond to plaintiffs' discovery demands and bill of particulars as per the preliminary conference order. Further, plaintiffs' counsel warned that "appropriate motion practice including counsel fees" would ensue if the requested discovery was not provided.

On September 12, 2007, defendants' new counsel requested an adjournment of the court ordered depositions "in order to allow our office time to review the file and answer discovery." The depositions were therefore not held on September 17, 2007. By a handwritten facsimile message dated October 4, 2007, plaintiffs' counsel warned defendants' attorney that she would move for sanctions, which prompted a reply dated October 10, 2007, in which defendants' counsel advised that the delay in producing the records was defendants' accountant's fault. 

On October 23, 2007, defendants served a bill of particulars with respect to their counterclaims, together with written discovery responses.

Dissatisfied with these responses, plaintiffs' attorney served and filed the instant motion. In a letter dated January 7, 2008, defendants' counsel requested that the depositions of all parties be scheduled for February 2008, which letter was not responded to by plaintiffs' counsel. On January 16, 2008, defendants served their cross motion.

In support of their summary judgment motion, plaintiffs annex an estimate dated February 21, 2007, from a non-party construction company, indicating that the cost of the remaining contractual renovations not performed by [Defendant] is approximately $92,000.00. Plaintiffs also annex thirty eight photographs, taken by them in November 2006 and February 2007, allegedly depicting construction or renovation to various parts of their residence as incomplete and/or performed in an unworkmanlike manner.

Plaintiffs contend that their motion should be granted because there was a contract between the parties, plaintiffs made payments under that contract (as evidenced by the copies of plaintiffs' checks submitted with the motion) and the contract was breached (as evidenced by the photographs of plaintiffs' residence which were also submitted). In addition, plaintiffs assert that defendants failed to comply with the preliminary conference order because defendants failed to adequately respond to plaintiffs' discovery demands. Plaintiffs argue that, alternatively, defendants should be precluded "from submitting any evidence at a trial herein on the issues presented."

Defendants oppose plaintiffs' motion for summary judgment on the ground that there are numerous material and triable issues of fact. In addition, defendants maintain that pursuant to CPLR 3025 (b), they are entitled to leave to amend their original answer. They allege that defendants' former counsel used "inartful pleading" in drafting the original answer, and that plaintiffs would not be prejudiced by the proposed amendment, even though this proposed amended answer would eliminate defendants' admission made in the original answer that "said [construction/ renovation] services were to be performed in a good and workmanlike manner and in accordance with the agreement of the parties." As part of the proposed amendment, defendants seek to assert a new counterclaim based upon the alleged fraud on the part of plaintiffs. Defendants further contend that the complaint against [Individual Defendant] should be dismissed pursuant to CPLR 1003 because the complaint contains no allegations against him personally. Finally, defendants assert that plaintiffs' motion is frivolous and that defendants should, therefore, be awarded counsel fees and costs pursuant to 22 N.Y.C.R.R. § 130-1.1


Plaintiffs' Motion for Summary Judgment

Summary judgment is a drastic remedy, and should be granted only when it is clear that no triable issues of fact exist. Alvarezv. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. Giuffridav. Citibank, 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. ProspectHospital, supra , at 324.

Accordingly, issue-finding rather than issue-determination is the key to the procedure in deciding a motion for summary judgment. See Sillmanv. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 165 NYS2d 498, 144 NE2d 387 (1957). The evidence presented by the non-moving party must be viewed in a light most favorable to the non-moving party. See Fleming v.Garment Ser.34 AD3d 525, 526, 824 NYS2d 376 (2nd Dept. 2006). When there is any significant doubt as to the existence of a material triable issue of fact, or where the material issue of fact is arguable, summary judgment must be denied. See Salino v. IPT Trucking, Inc., 203 AD2d 352, 610 NYS2d 77 (2nd Dept. 1994). In this case, plaintiffs have failed to demonstrate their entitlement to summary judgment.

The elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant, (2) performance by plaintiff, (3) defendant's failure to perform, and (4) resulting damage. See 2 NY PJI3d 4:1, at 612 (2008);see also, Ascoli v. Lynch, 2 AD3d 553, 769 NYS2d 567 (2nd Dept. 2003); Furia v. Furia116 AD2d 694, 498 NYS2d 12 (2nd Dept. 1986). In support of their motion for summary judgment, plaintiffs submit a copy of : (1) the contract; (2) their checks made payable to [Defendant] for a sum that is less than the total amount called for under the contract; (3) photographs of certain areas of their residence; and (4) a third party estimate for the additional construction or renovation work allegedly needed. However, plaintiffs have not submitted an affidavit from an architect or professional engineer indicating that defendants have not completed the work due under the contract, or partially performed in an unworkmanlike manner. As a result, the court cannot determine which services depicted or contracted for by plaintiffs have or have not been performed under the contract by defendants.

Moreover, plaintiffs have not demonstrated that they themselves are free from fault with respect to their obligations under the contract. See Odysseys Unlimited, Inc. v Astral Travel Service, 77 Misc 2d 502, 505, 354 NYS2d 88 (Nassau Coun. 1974). Viewing the evidentiary record in a light most favorable to the non-moving defendants, the court finds that a material issue of fact requiring trial exists concerning which party or parties breached the contract.

With respect to plaintiffs' remaining claims of misrepresentation, fraud, and undue influence, they have not attempted to make any showing with respect to such claims and defendants have vigorously disputed plaintiffs' allegations. Accordingly, plaintiffs' motion for summary judgment is denied. 

Plaintiffs' request for an Order of Preclusion

Plaintiffs request that the court preclude defendants from introducing any evidence in defense of this action based on defendants' failure to comply with the preliminary conference order. CPLR 3126 provides:

"If any party ... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just ...."

Correspondence by defendants' counsel, which is outlined above, reasonably explains the delay resulting from the substitution of counsel. Further, it indicates defendants' good faith attempts to comply with the preliminary conference order. Nevertheless, the court understands plaintiffs' frustration with the delays in this case and their desire to proceed as expeditiously as possible. Accordingly, and in the court's discretion, defendants are directed to provide the requested disclosure within 45 days and submit to depositions within 60 days after service of a copy of this order with notice of entry. SeeNegro v. St. Charles Hospital, 44 AD3d 727, 728, 843 NYS2d 178 (2nd Dept. 2007). Failure to comply will expose defendant to significant sanctions including preclusion. 

Defendants' Motion seeking to Amend the Answer

It is well settled that leave to amend a pleading pursuant to CPLR 3025 (b) shall be freely given and such a grant shall remain undisturbed in the absence of an abuse of discretion by the court. Delay alone is not sufficient to deny a motion to amend unless accompanied by significant prejudice. See Hanchett v. Graphic Technics, Inc., 243 AD2d 942, 943, 667 NYS2d 436 (3rd Dept. 1997). Prejudice means that the party opposing the amendment has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position. See Loomis v.Corinno Corp., 54 NY2d 18, 23, 444 NYS2d 571, 429 NE2d 90 (1981). 

The original answer, served approximately fifteen months ago, admitted that "said services were to be performed in a good and workmanlike manner and in accordance with the agreement of the parties," a claimed standard of performance of defendants' work under the contract. Defendants now seek leave to amend their answer to deny the claimed standard of contractual performance. The court's inquiry is whether plaintiffs would be prejudiced by this proposed amendment, which is a change in position by defendant.

The passage of time alone, without more, is insufficient to deny leave to amend a pleading. See Eng v. DiCarlo, 79 AD2d 1018, 435 NYS2d 336 (2nd Dept. 1981). Despite the passage of more than a year since the filing of the original answer, there appears to be no prejudice to plaintiff as the parties have not engaged in prior motion practice and discovery is still in its early stages. See Antwerpse Diamantbank v. Nissel, 27 AD3d 207, 810 NYS2d 180 (1st Dept. 2006). While plaintiffs argue that such a change in position would prevent granting plaintiffs' summary judgment, and is therefore prejudicial, summary judgment has been denied based upon the original answer. Therefore, plaintiff will not suffer prejudice by the amendment.

In any event, the prior answer shall remain admissible as an informal judicial admission, the circumstances of which may be explained at trial. See Bogoni v. Friedlander, 197 AD2d 281, 292-293, 610 NYS2d 511 (1st Dept. 1994).

Defendants also seek leave to add a fourth counterclaim arising out of plaintiffs' purported breach of promise to pay for various work in connection with the contract. While leave to amend is freely given, the proposed amendment must be appear to be meritorious. See Paolano v. Southside Hosp., 3 AD3d 524, 771 NYS2d 152 (2nd Dept. 2004); CPLR § 3025

It is established that the failure to perform is merely a breach of contract enforceable by an action on the contract, and a cause of action for fraud does not arise when the only fraud charged relates to the mere breach of contract. See Sirota v. Champion Motor Inc., 18 Misc 3d 862, 868, 849 NYS2d 426 (Sup. Ct. Kings Cty. 2008). Here, regardless of how the fourth proposed counterclaim is framed, the only fraud charged therein relates to a breach of contract by plaintiffs. Accordingly, the court denies defendants' request to amend their answer so as to add the fourth counterclaim. 

Defendant's Dismissal of Complaint Against [Individual Defendant]

Pursuant to CPLR § 1003, defendants seek dismissal of the action against [Defendant]'s president, [Individual Defendant]*1 as the allegations in the complaint contain no separate allegations against him. The court notes that defendants' original answer contained an affirmative defense of an improper joinder.

An agent for a disclosed principal, acting within the scope of his or her authority, will not be personally liable for a breach of contract unless there is clear and explicit evidence of the agent's intention to be personally bound. See Weinreb v. Stinchfield, 19 AD3d 482, 483, 797 NYS2d 521 (2nd Dept. 2005). Plaintiffs claim that [Individual Defendant] made misrepresentations and gave false assurances that defendants would perform under the contract. If such statements were made by [Individual Defendant], he was acting as [Defendant]'s agent at the time, and not individually. Therefore, plaintiff would be required to pierce [Defendant]'s corporate veil in order to hold [Individual Defendant] personally liable. See Morris v. Dept. of Taxation, 82 NY2d 135, 140, 603 NYS2d 807, 623 NE2d 1157 (1993).

In order to pierce the corporate veil, plaintiff is required to show that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury. See Morris v. Dept. of Taxation, supra at 141. Here, plaintiffs have made no showing whatsoever of the foregoing requirements. Accordingly, the complaint against [Individual Defendant] is dismissed. 

Fees and Costs 

Pursuant to the Rules of the Chief Administrator 22 N.Y.C.R.R. §130-1.1 defendants seek an award of costs, including attorney's fees. Defendants argue that plaintiffs' motion is premature, frivolous and improper at this time." They further urge that plaintiffs have failed to attach to their motion an affirmation of good faith, which is required with any discovery-related motion pursuant to 22 N.Y.C.R.R. §202.7 (a). *2

It is concluded that plaintiffs' conduct does not warrant the imposition of costs. Plaintiffs attempted to resolve their discovery disputes with defendants in good faith and without the necessity of motion practice. Further, it appears that defendants' eagerness to conduct depositions in February 2008 was prompted by plaintiffs' filing of the instant motion. As a result, it would appear that there was substantial compliance with the requirement of §202.7. Plaintiffs' counsel attempted, in good faith and without the need for judicial intervention, to resolve the discovery dispute by the letters which complied with § 202.7 (c). Therefore the failure to include an affirmation to this effect is excused pursuant to CPLR §2001 as a mere procedural irregularity, since no substantive right of defendants has been abridged. 


In light of the above, plaintiff's motion for summary judgment is denied. Plaintiff's motion for a preclusion order is conditionally granted. Defendants' cross motion to amend their answer is denied. Defendant's cross motion to dismiss the complaint against [Individual Defendant ] is granted. Defendant's cross motion for sanctions pursuant to 22 N.Y.C.R.R.§130-1.1 is denied. This constitutes the decision of the court. Plaintiff is directed to settle order on notice in accordance with this decision.

/S/ J.S.C.


Footnote 1: CPLR § 1003 provides that "[p]arties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just." 

Footnote 2: This provision of the Uniform Rules for the New York State Trial Courts requires attorneys to consult with each other in good faith to resolve any discovery issues prior to bringing a motion and to include with such a motion an affirmation that such efforts were made.