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New York : Opposition to Stay Divorce Pending Appeal

APPELLATE DIVISION: SUPREME COURT
SECOND JUDICIAL DEPARTMENT
-----------------------------------------------------------------X                               Nassau County Clerk
ANGELA R,                                                                                                     Index No. 200XXX/09
                                      Plaintiff-Respondent

-against-                                                                                       AFFIRMATION in OPPOSITION TO
GREGORY R,                                                                                   DEFENDANT'S ORDER  TO SHOW CAUSE
                                         Defendant-Appellant
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STATE OF NEW YORK )
                                       ss.:
COUNTY OF NEW YORK )

Susan Chana Lask, Esq., an attorney duly admitted to practice before this court and the courts of the State of New York, with offices in New York City and in good standing, deposes and says under penalty of perjury pursuant to CPLR 210 (b):

1. I am counsel for Angela R, the Plaintiff herein and am fully familiar with these proceedings. I submit this affirmation in opposition to Defendant's June 28, 2010 Order to Show Cause ("OSC") (a) seeking a stay of the matrimonial court's proceedings based on alleged discovery issues when no discovery order exists, (b) consolidating two appeals Defendant filed when the first is from a non-appealable order and (c) modifying from what account Defendant can withdraw money when Defendant's recourse is to first make that request to the lower court, not file an OSC to stay the matrimonial proceedings.


FACTS


2. In 1991, Plaintiff Angela R and Defendant Gregory R married. They were a working class couple with an income of about $75,000 a year. They have two children, now ages 15 and 16.

3. In 1996, Angela R contracted bacterial meningitis from a medical procedure, leaving her permanently disabled, including loss of vision and hearing, tinnitus and chronic pain. In 1997 a medical malpractice complaint was filed on her behalf, naming Defendant husband limited to a "loss of consortium" claim.


4. In 2003, a net settlement check of $4.8 Million Dollars was made in the name of both parties. The personal injury attorney never allocated the settlement according to Plaintiff's debilitating injuries and Defendant's limited "loss of consortium" claim.


5. In 2003, the settlement check was immediately deposited into a joint brokerage account in both parties' names. It was never commingled, but maintained its unallocated status (contrary to Defendant's misrepresentation at his OSC page 2, fn 1 as if the funds were commingled).


6. In 2007, solely for the convenience of estate tax purposes to stay under the Federal estate tax million dollar limit, a Trust and Estates attorney segregated the joint brokerage account into two accounts under estate tax limits, one in each party's name, with equal amounts of the unallocated settlement (Exhibit A ¶8).


7. Defendant admitted in his sworn affidavit that "the proceeds were not allocated" and in fact always remained in the exact posture they were delivered to the parties- jointly and unallocated; to wit: "those proceeds were consistently maintained in our joint names since the date of issuance" (Exhibit A ¶7).


8. From 2003 to 2009, the parties withdrew from the brokerage account of unallocated and non-commingled funds about $6,000 a month each and deposited that total of $12,000 into a joint Citibank account to pay marital expenses (Exhibit A ¶10,11).


9. Notably, that $12,000 a month was in addition to Defendant's some $5,000 income a month from his employment. This working class couple went from about $5,000 a month from when they were married in 1991 to using $12,000 a month from 2003 by taking $12,000 monthly from the $4.8 Million Dollar settlement from Plaintiff's serious injuries. From 2004 to 2009, there were purchases of a $1.5 Million Dollar home in Massapequa, multiple boats for Defendant and his son, expensive electronics, toys and other items for the children, and unexplainable loans by Defendant over Plaintiff's objection (Exhibit "B"-108,116,181).


10. On or about March 20, 2009, Plaintiff filed for divorce complaining about Defendant's mismanagement of her settlement funds (Exhibit "C"). On or about July 25, 2010, Plaintiff filed a pendente lite motion requesting exclusive occupancy of the marital home, and brought to the lower court's attention that the $4.8 Million Dollar settlement was never allocated. On or about August 10, 2010, Defendant filed opposition (a) confirming the Settlement was never allocated, (b) that no discovery at that early time was exchanged nor was discovery before the lower court and (c) he objected that the lower court should not consider the pendente lite motion because Plaintiff's Net Worth Statement was not yet submitted (Exhibit A, ¶2,7).


11. On September 1, 2009, the lower court's decision to the pendente lite motion with respect to the Settlement allocation held "this issue will be determined at trial" (Exhibit "D"). In October, 2009, Defendant filed for reargument. On December 22, 2009, the lower court (a) confirmed that Gregory R never cross-moved for relief that the Settlement should be determined separate property (b) noted his papers admitted the Settlement was never commingled with marital property and (b) held it "adheres to its original decision and order dated September 1, 2009" wherein it needed a trial on the issue as it was never before the lower court (Exhibit "E").


12. Despite that decision simply holding that a trial would be held, on March 17, 2010, Gregory R filed an appeal and Brief claiming the lower court decided the Settlement funds were separate property. On or about June 8, 2010 Plaintiff filed her Brief in opposition explaining that Defendant was appealing a non-appealable order because the lower court never decided anything except that there will be a trial in the future.


13. On March 8, 2010, Defendant filed another OSC, this time demanding the lower court report Plaintiff as a criminal for an unspecified crime to the District Attorney. That OSC was so frivolous that not only did the lower Court on the March 23, 2010 return date demand Defendant withdraw it, but it led Plaintiff to discover Defendant was hiding marital funds.


14. Plaintiff filed a March 23, 2010 cross-motion requesting the court protect the Settlement funds. Defendant responded by admitting he makes some $5,833 a month plus takes $6,000 monthly from the Settlement-a total of $11,833.


15. A June 14, 2010 lower court Order found (a) the husband's Net Worth Statement did not disclose loans he claimed, (b) he admitted his expenses were $7,000 a month yet he was making $5,8333 in wages and taking $6,000 from the Settlement-a total of $11,833 a month and (c) held that his $5,833 income plus $4,600 from the Settlement, a total of $10,433 a month, is sufficient for his and the children's' interim monthly expenses and a July 14 return date for a "certification conference" (Exhibit "F").


16. On June 28, 2010, Defendant responded by filing (a) a Notice to Appeal the June 14, 2010 Order and (b) another OSC, not to the lower court but this time to the Appellate Court demanding it intervene to prevent a trial in this case, alleging also that he does not have complete discovery.


17. The case is not in Note of Issue status. The July 14, 2008 certification conference was a date agreed to by the parties' counsel before the lower court at a June 3, 2010 conference. Also at that June 3, 2010 conference, for the third time, the lower court ordered that Defendant take Plaintiff's deposition by June, 2010. Defendant refused to appear for a June deposition. A discovery referee was appointed by the lower court to report at the July 14, 2010 conference date regarding Defendant's allegation that he does not have discovery. That date was adjourned to July 28, 2010.


18. On June 28, 2010, your affirmant spoke with Rich, the clerk to Judge Falanga of the lower court. Rich confirmed the July 18, 2010 return date was a conference date, not a trial date nor a date to force a trial as Defendant's OSC misrepresents.


19. Defendant has been obstructing a speedy trial of this case based on multiple false allegations. His allegation now that he does not have financial discovery to proceed in his case has been proven false before the lower court, particularly at Defendant's April 8, 2010 deposition when he admitted he had all financial discovery from the beginning of their marriage to this action, proving his excuse in his OSC is patently false (Exhibit B, 64:8-14;65:18-22;66:2-8).


20. Once his discovery objection was proven false by his own testimony, he then filed several baseless appeals and resorts to the present OSC to interrupt the orderly proceedings of the lower court to reach a speedy trial. The absurdity of the OSC is proven by the fact that it is literally a duplicate argument of Defendant's March 15, 2010 Brief appealing the December 22, 2009 Order. That Brief is based upon an unappealable Order simply directing a hearing is needed, which Defendant failed to obtain permission to appeal. The OSC is also an attempt to reargue the June 14, 2010 Order in the Appellate court rather than filing for reargument in the lower court.


LAW AND ARGUMENT

 


21. The above facts confirm Defendant's OSC before this Court is false to claim the case is trial ready requiring a stay by this Court when Note of Issue was not filed and the referee report has not been received. In addition to the patently defective procedure Defendant is attempting before this Department by way of OSC, it is also by law that his OSC to stay a speedy trial has no basis. The law in this Department is well settled that "any perceived inequities in the pendente lite award can be best remedied by a speedy trial, at which the parties' financial circumstances can be fully explored." Issacs v. Issacs,897 N.Y.S.2d 227(2 Dept, 2010) citing Sinanis v Sinanis, 67 AD3d at 774; see Swickle v Swickle, 47 AD3d 704, 705, 850 N.Y.S.2d 487; Balkin v Balkin, 8 AD3d 416, 778 N.Y.S.2d 537; Gold v Gold, 212 AD2d 503, 622 N.Y.S.2d 113).


22. Defendant incredibly shifts positions when it is convenient for his baseless argument, which is well proven throughout his chronic filings, all denied. Even here he claims this is not a pendente lite issue, yet in his sworn August 9, 2009 affidavit in opposition to Plaintiff's pendent lite motion he confirms "I submit this opposition to my wife's order to show cause which seeks pendente lite relief." (Exhibit A-¶1).


23. Defendant's OSC claims the appellate court should interfere because the lower court did not provide child support. Defendant provides no proof that the substantial $10,433 a month the lower court granted him creates an exigent circumstance. This Department holds that "Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires" (Barone v Barone, 41 AD3d 623, 624, 839 N.Y.S.2d 161; see Sinanis v Sinanis, 67 AD3d 773, 888 N.Y.S.2d 606). Issacs, supra,
24. Clearly $10,433 a month is a huge amount of money for Defendant - unless he is mismanaging and overspending. And that is exactly the problem as Defendant admitted multiple time he overspends and mismanages his funds (see ¶18 herein above).


25. More compelling against Defendant's OSC is that he admitted he needs $7,000 for living expenses for he and the two teenage children, both employed, not the $11,833 he was taking while he concealed the fact that he was not contributing to marital debts. Also, he never claimed he needed even the generous $10,433 the lower court granted him on June 14, 2010 according to his own Net Worth Statement. Thus, his OSC ¶12 is baseless to state that "the significant marital asset has now been effectively placed beyond his reach" when he takes $10,433 monthly as opposed to the seriously ill and unemployed Plaintiff limited to $6,000 monthly while she is Ordered to pay all of the marital home expenses, plus her living expenses that Defendant admitted were more than $6,000 monthly.


26. If anyone should be complaining here it is Plaintiff at how much and how rapidly of the settlement funds Defendant is depleting and how he gets almost twice as much as she does a month to live from; however, she is trying to get to a speedy trial rather than abuse the Appellate Court to interfere with the trial court's procedure of obtaining a full record before appeal.


27. The above law alone dismisses Defendant's OSC; however, his application is much more defective. Though couched as a request for an injunction, Defendant's application is actually for a stay of a hearing based upon the lower courts December, 2009 Order holding a trial is needed. That Order is not appealable as a matter of right, but mandates permission. CPLR •5701. Defendant never obtained permission, yet on March 17, 2010 he improperly appealed the Order, then calculatingly filed another appeal of the June 14, 2010 pendente lite order and filed this OSC to make believe a stay is needed and that two appeals should be joined. Yet his first appeal is from an unappealable order so there is no joinder issue.


28. Defendant wants to avoid the ultimate allocation trial. His strategy is to obstruct the lower court proceedings to avoid trial, making believe the Appellate Court should rule on what the lower court never reached, despite this Department's clear position not to interfere with pendente lite relief until a full hearing or if exigent circumstances exist. None of which exist here.


29. The lower Court ordered a hearing on the allocation of a personal injury settlement, the injury to Plaintiff being horrendous, as the matter was settled and net proceeds of $4.8 Million were received. Although the Defendant husband's name ended up on the settlement check back in 1996, his counsel concedes that what he would have been entitled to was limited to a loss of consortium claim, and does not even suggest that would be a one-half interest. His argument is simply that he does not agree with the lower court's order that a speedy trial is needed.


30. The lower Court noted in its December 28, 2010 Order, and Defendant does not dispute, that the Plaintiff is entitled to a hearing to demonstrate that the Defendant husband was not intended to have a one-half interest of her $4.8 Million Dollar settlement based on her horrendous injuries. The lower Court found that the monies were never allocated. Defendant does not, and cannot claim otherwise. The hearing is then on that allocation. Defendant does not suggest how he could be meritorious where there was never an allocation of funds.


31. Notably, after a June 28, 2010 argument on this OSC, Judge Austin denied the OSC emergency relief requesting a stay after he multiple times asked Defendant's counsel why he has not first requested the lower court to correct its June 14, 2010 Order regarding his real complaint that Defendant wanted to withdraw funds from another account and why he has not filed a CPLR 3126 motion if he feels a discovery issue exists. Defendant had no answer.


32. Judge Austin is correct. The proper procedure would be to bring a motion to the lower court, not an OSC to this Appellate Court.


33. Defendant's first appeal is from an order directing a hearing. Defendant's purpose of now seeking a stay by OSC is to coerce the Plaintiff into abandoning her position as to the inherent inequity of her husband's position.


34. The stay application also deals with Defendant's claim that not immediately granting a counsel fee on his claim that his wife is the monied spouse should be acted upon prior to hearing the non-meritorious appeal. Defendant has $1.2 million that he is holding subject to the order of the Court. Plaintiff, who is unemployed has more, which causes Defendant to view his wife as the monied spouse. However, no comment is made on why the two accounts are not close to equal, even with taking into account support for the children.


35. There is the serious question of a shortfall by Defendant who acknowledges that while his wife has $1.7 from the settlement, he has only $1.2 million. He wants adjustments to be made in the amount he can withdraw before the Court determines ownership of the funds, which would unfairly prejudice Plaintiff.
36. Most interesting is the fact that the Settlement was equally divided into brokerage accounts 2007 solely for estate tax purposes, yet Defendant has found a way to blow through it at an alarming rate of missing some $500,000 in the past 3 years. If it was really his money then Defendant would be saving it, not spending it at an extra $100,000 a year and well beyond any child support standard. If he's really worried about the children, at this rate there will be nothing left. Then he'll turn to the wife he claims is the monied spouse who was responsibly prudent and use her savings that was meant to compensate her for her personal injury. As the Court can see, Defendant's position in his OSC is patently frivolous.


37. Defendant claims that he will prove that he is entitled to the funds without any basis as to just how he is entitled when they are Plaintiff's personal injury funds, and he admits they were never allocated.


38. The status quo is maintained. Defendant does not argue that if he is successful that he will be the non-monied spouse and would be entitled to a fee for having less now than his wife. If he should not receive all those funds, possibly because of fraud or overreaching, or some other inequity, Defendant does not claim that he would still be entitled to counsel fees under those circumstances.


39. Accordingly, not determining Defendant's rights to fees until the Court determines the allocation of those funds is the proper way in which to proceed. To the extent he has legal fees, his attorney has a charging lien on his share, which sounds like wonderful security for payment----unless of course the attorney's argument for recovery is specious.


40. It is worth noting that Defendant testified that his legal fees are paid from his salary (Exhibit B 234-235:25-9), yet now he changes that position for purposes of this OSC and cries he has no income to pay those bills. Furthermore, his alleged "financial burden" is due to his own ratcheting the tenor of this litigation by his baseless OSC's, motions, and appeals in both the lower court and this Court and his admitted inability to handle his financial affairs by wasting money and having no explanation as to where it goes as he testified his expenses are due to his "indulgence" and he "overspent" on "unexpected bills" (Exhibit B 78:13-19;181:22-24)


41. Defendant also complains about the monthly withdrawal from the account of interest and dividends, without explanation of the evidence before the Court which would yield a different calculation for those sums. It is about 3% annually of the asset value. The lower Court was quite precise in its calculation derived from Defendant's Net Worth Statement. Defendant does not explain how he would prove otherwise. The lower Court ordered Plaintiff to pay 100% of the carrying charges on the marital residence and all her living expenses. Is Defendant seeking a stay of that, so that he would contribute 50%?


42. He appears to complain that the lower court's order mistakenly references he withdraw from interest and dividends that do not produce the amount he is ordered to withdraw. That does not mandate Appellate intervention by this OSC. A simple motion to the lower court to correct the Order as to whether the withdrawal is from the interest and dividends or otherwise would resolve any issue. Also, Defendant could have communicated that issue to Plaintiff's counsel and resolved it by stipulation if Defendant provided the proper proofs. There is no reason to be so overly litigious in this case other than Defendant obstructing the lower court proceedings to avoid the inevitable result of allocating Plaintiff's personal injury settlement. It is after such a hearing that Defendant should appeal, not now.


43. As to Discovery, there is a Referee, and while Defendant complains to this Court about the Referee, Defendant has never made a discovery motion nor is there a ruling by the lower court, on appeal, which deals with discovery issues. Defendant's recourse was to make application before the Court or Referee, not to this Department. The complaints of Defendant, which are not accurate, are trivial.

WHEREFORE, it is respectfully requested that Defendant's OSC be denied in its entirety.

Dated: July 12, 2010         LAW OFFICES OF SUSAN CHANA LASK
New York, NY

_________________________
By: Susan Chana Lask, Esq.
244 Fifth Avenue, Suite 2369
New York, New York 10001
212. 358-5762