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Decisions

Notable Decisions

Most decisions issued by the trial courts are not reported. Here are some of the reported decisions in which our lawyers were involved.

September 25, 2015 – In Jackson K. v. Parisa G., 300957/15 (Sup. Ct. New York Co. Sept. 15, 2015), Justice Laura Drager excluded an affidavit from the parties’ psychologist/couple’s counselor, ruling that it was inappropriately submitted on the Wife’s motion to dismiss, but stating that the psychologist/couple’s counselor’s testimony might be admissible at trial. The Wife had argued that by seeking compensatory and punitive damages for mental anguish stemming from the Wife’s alleged fraud and misrepresentation arising from her claims that the parties were never married, the Husband had put his mental condition in issue. The Husband, on the other hand, had argued that the psychologist’s testimony was protected by the psychologist-client privilege, which privilege the Husband had never waived.

September 24, 2015 – In Fan v. Sabin, 158780/12 (Sup. Ct. New York Co. Sept. 22, 2015), Justice Carol Edmead granted the Defendant’s motion for summary judgment, ruling that the Defendant’s blood tests showing that he did not have herpes demonstrate that he could not have given the virus to the Plaintiff. The Court found that the Defendant had satisfied the exception against inadmissible hearsay contained in CPLR 4518(a) by laying a proper foundation for the blood tests’ admission. The Court also found that the blood tests possessed the “indicia of reliability necessary to invoke the business records exception to the hearsay rule,” because the Defendant undertook the blood tests prior to the commencement of the litigation, and not, as the Plaintiff argued, “solely to prove a point in the litigation.”

Child Support/Spousal Support

Konigsberg v. Konigsberg, 3 A.D.3d 330, 770 N.Y.S.2d 322 (1st Dep’t 2004): The Appellate Division affirmed that the plaintiff-wife was entitled to lifetime maintenance, even though she had worked throughout the marriage, because she was incapable of becoming self-supporting at a level roughly commensurate with the marital standard.

Coburn v. Coburn, 300 A.D.2d 212, 752 N.Y.S.2d 319 (1st Dep’t 2002): The Appellate Division affirmed the trial court’s order that awarded the plaintiff $20,000 per month in temporary maintenance and the judgment that awarded her $20,000 per month in maintenance for 10 years because it had properly considered, among other things, the duration of the marriage, distribution of marital assets and the parties’ lavish standard of living during the marriage.

Krutyansky v. Krutyansky, 289 A.D.2d 299, 733 N.Y.S.2d 920 (2nd Dep’t 2001): The Appellate Division affirmed the trial court’s award of maintenance based on the financial circumstances of both parties, the pre-divorce standard of living, the age, health and skills of the parties, as well as the duration of the marriage.

Iwahara v. Iwahara, 226 A.D.2d 346, 640 N.Y.S.2d 217 (2nd Dep’t 1996): The Appellate Division modified the trial court’s judgment by reducing the maintenance award to $20,000 per year for 10 years in light of the duration of marriage, the wife’s relatively young age and excellent health, and the fact that the parties’ children were 9 and 11 years old. The appellate court upheld the trial court’s award of child support in the amount of $20,000 per year based on the parties’ financial resources, the higher standard of living the children would have enjoyed had the marriage not dissolved and the fact that the husband’s gross income was substantially greater than the wife’s.

Nadel v. Nadel, 220 A.D.2d 565, 632 N.Y.S.2d 631 (2nd Dep’t 1995): The Appellate Division modified the judgment and awarded the wife permanent maintenance in view of the wife’s age, physical condition and the number of years she had remained out of the workforce to accommodate the husband’s career advancement. It was unlikely that she would obtain gainful employment that would eventually make her self-supporting.

Vlak v. Nelisson, 206 A.D.2d 521, 615 N.Y.S.2d 66 (2nd Dep’t 1994): The Appellate Division modified the judgment by directing the husband to enroll the parties’ child in his employer’s health insurance plan and remitted the matter to the Supreme Court for a hearing to determine the costs and duration of the child care expenses and the amount to be paid by each party.

Falconio v. Mitrione, 174 A.D.2d 598, 571 N.Y.S.2d 306 (2nd Dep’t 1991): Upon its review, the Appellate Division found that the children’s reasonable educational expenses amounted to $360 per month, of which the husband should be responsible for 90% and the wife 10%.

Ciaccio v. Ciaccio, 162 A.D.2d 494, 559 N.Y.S.2d 143 (2nd Dep’t 1990): The trial court awarded the plaintiff $2,500 in unallocated temporary support. The Appellate Division modified the trial court order by allocating $1,500 for temporary maintenance and $1,000 for temporary child support.

Zahr v. Zahr, 149 A.D.2d 504, 539 N.Y.S.2d 984 (2nd Dep’t 1989): The Appellate Division modified the trial court by reducing temporary maintenance award to $5,100 per month and directing the plaintiff to pay $12,041 per month for household expenses. Although the standard of living previously enjoyed by the parties was a relevant consideration in assessing the reasonable needs of a temporary maintenance applicant, the predominant consideration was the applicant’s financial need.

Goldman v. Goldman, 132 Misc.2d 870, 505 N.Y.S.2d 746 (Sup. Ct. N.Y. Co. 1986): The wife’s motion for temporary support under Family Court Act §434 was denied because she did not meet her burden of showing “urgent need” since she was a co-owner with her husband of a $4 million estate in New York, a condominium in Florida and received regular distributions totaling $136,000 per year.

Lasry v. Lasry, 180 A.D.2d 488 (1st Dep't. 1992): The Appellate Division affirmed the trial court’s award of $1,000 per week in temporary maintenance and $500 per week in child support because it represented a measured accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse.

Contempt
Gordon v. Janover, 121 A.D.2d 599, 503 N.Y.S.2d 860 (2nd Dep’t 1986): The Appellate Division affirmed the trial court’s finding that the plaintiff was in contempt for failing to abide by the visitation provisions of the couple’s separation agreement and for failing to abide by two court orders that directed her to continue the child’s treatment by a certain psychologist.

Custody
Matter of A.K. v. A.S., 32 Misc.3d 431 (NY Fam. Ct. May 25, 2011): The court held that the father’s petition for custody and request for a forensic evaluator had been premature as he did not show any harm to the children or that their reasonable needs were not being met. The children were doing well in school, were in good health and enrolled in therapy.

Liddle v. Liddle, 30 Misc.3d 1207A (Sup. Ct. Nassau County, November 17, 2010): The defendant did not have sufficient minimum contacts with the state of New York for the court to confer jurisdiction over him. The country of Brazil was the matrimonial domicile of the parties before their separation. Therefore, the defendant’s motion to dismiss the instant action was granted.

Rodman v. Friedman, 33 A.D.3d 400 (1st Dep't. 2006): The Appellate Division affirmed the trial court’s decision, which found that the plaintiff had alienated the child from the defendant, set a schedule for future self-executing fines against the plaintiff for any possible violations of court orders and ordered her to pay the defendant $10,000 in counsel fees. The court had based its finding that the mother had alienated the child from the father on the forensic report, in camera interview with the child, and numerous documents, interviews and court appearances.

Discovery
Teich v. Teich, 245 A.D.2d 41, 665 N.Y.S.2d 859 (1st Dep’t 1997): The Appellate Division affirmed the trial court’s order directing the defendant to produce copies of his redacted attorney’s bills so as not to disclose privileged matter or attorney’s work product.
 
Fisher v. Fisher, 159 Misc.2d 1115, 608 N.Y.S.2d 383 (Sup. Ct. N.Y. Co. 1994): The defendant’s request for the production of the reports by the plaintiff’s experts and to depose the real estate expert was denied for lack of basis in law. The defendant’s request for a Special Master to supervise disclosure was granted.

Horton v. Horton, 157 Misc.2d 480, 597 N.Y.S.2d 564 (Sup. Ct. N.Y. Co. 1993): The court granted the plaintiff’s motion for an order directing the defendant to produce all trust agreements in which he or the parties’ children have any interest, and all documents showing the assets held and income earned and distributed by such trusts because information as to an inheritance to which the defendant may in the future be entitled was discoverable.

Lerner v. Lerner, 90 A.D.2d 452 (1st Dep't. 1982): The Appellate Division modified the trial court’s order to eliminate the inquiries into what services had been rendered on behalf of the respondent and what services counsel had been retained to render on behalf of respondent, as that was beyond the scope of disclosure.

Equitable Distribution
Konigsberg v. Konigsberg, 3 A.D.3d 330, 770 N.Y.S.2d 322 (1st Dep’t 2004): The Appellate Division affirmed that, given the length of the parties’ marriage and the plaintiff-wife’s substantial contributions to the defendant-husband’s law firm, the plaintiff-wife’s award of a 50% share in the defendant’s interest in his law firm was warranted. Similarly, the plaintiff’s pension should be apportioned 50% for the plaintiff and 50% for the defendant.

Coburn v. Coburn, 300 A.D.2d 212, 752 N.Y.S.2d 319 (1st Dep’t 2002): The Appellate Division affirmed the trial court’s distribution of marital assets, which was based on the circumstances of the case and of the respective parties, including the award of future maintenance for 10 years. The trial court has great flexibility in equitably distributing the marital assets; equitable distribution does not necessarily mean equal distribution.

LeRoy v. LeRoy, 274 A.D.2d 362, 712 N.Y.S.2d 33 (1st Dep’t 2000): The defendant husband had not met the burden that some $19.5 million in assets were separate property.  The trial court had equitably distributed 40% of the marital assets to the wife in conjunction with lifetime maintenance in view of the parties’ 30-year marriage. Any further reduction of the defendant’s payment obligations was unwarranted.

Golub v. Golub, 139 Misc.2d 440, 527 N.Y.S.2d 697 (Sup. Ct. N.Y. Co. 1988): The skills of an artisan, actor, professional athlete or any person whose expertise in his or her career had enabled him or her to become an exceptional wage earner should be valued as marital property subject to equitable distribution. Although the plaintiff’s celebrity status was neither “professional” nor a “license”, its increase in value was marital property.

Linda D. v. Theo C., 96 AD3d 432 (1st Dep't. 2012): The Appellate Division found that the trial court had adequately compensated the defendant for his contributions to the marital apartment, which the plaintiff had purchased before marriage, by giving him a credit for one-quarter of the renovation costs. The trial court had providently distributed the marital estate based on the factors listed in DRL §236(B)(5)(d).

Berk v. Berk, 170 A.D.2d 564 (2nd Dep't. 1991): The court erred in directing the sale of a property that the parties held as tenants by the entirety because the parties had not agreed to sell the property. The courts have no authority to order the sale of property held by tenants by the entirety without the parties’ consent.

Legal Fees
Papasoff v. Cockrell, 12 A.D.3d 259, 786 N.Y.S.2d 2 (1st Dep’t 2004): The petitioner father was entitled to the full amount of fees incurred by him in litigating the respondent’s relocation of the parties’ daughter to Colorado, including fees incurred by him in connection with the instant application.

Krutyansky v. Krutyansky, 289 A.D.2d 299, 733 N.Y.S.2d 920 (2nd Dep’t 2001): The Appellate Division decided that based on the income disparity of the parties and the defendant’s tactics, which unnecessarily prolonged the litigation, the defendant should pay the full amount the plaintiff’s counsel and expert fees.

LeRoy v. LeRoy, 276 A.D.2d 442, 715 N.Y.S.2d 231 (1st Dep’t 2000): The Appellate Division affirmed the trial court’s award of $100,000 to the plaintiff in anticipation of the counsel fees she would incur in connection with a then pending appeal of the divorce judgment in light of the defendant controlling nearly the entire marital estate, including all liquid assets, and the plaintiff lacking the money to pay her attorneys.

Fisher v. Fisher, 159 Misc.2d 1115, 608 N.Y.S.2d 383 (Sup. Ct. N.Y. Co. 1994): The defendant was directed to pay the plaintiff’s attorneys the sum of $75,000 in counsel fees.

Burns v. Burns, NYLJ, September 25, 2001, p. 29, col. 1 (Sup. Ct. Nassau Co.): The wife was awarded $175,833 in counsel fees to be paid by the husband.  

Gordon v. Janover, 121 A.D.2d 599, 503 N.Y.S.2d 860 (2nd Dep’t 1986): The trial court properly held the plaintiff in contempt for failing to abide by the visitation provisions of the parties’ separation agreement which was incorporated into their judgment of divorce and for failing to abide by two court orders which directed her to continue the child’s treatment by a certain psychologist.  In an action to punish for civil contempt, where no actual damage has been demonstrated, the court may impose upon the offending party the other party’s reasonable costs and expenses, including attorney’s fees.

Kiwon S. v. Daniel S., 95 A.D.3d 680 (1st Dep't. 2012): The trial court providently exercised its discretion in awarding the plaintiff $100,000 in interim counsel fees, subject to reallocation at trial, in light of the significant business investments within the defendant’s control, the nature of the issues in dispute, and the plaintiff’s lack of sufficient funds of her own to compensate counsel without depleting her limited assets.

Bragar v. Bragar, 277 A.D.2d 136 (1st Dep't. 2000): The trial court providently exercised its discretion in directing the plaintiff to pay $20,000 of the defendant’s counsel fees. Both parties engaged in tactics that unnecessarily prolonged the litigation.



Grounds for Divorce
M.M. v. E.M., 248 A.D.2d 109, 669 N.Y.S.2d 543 (1st Dep’t 1998): The Appellate Division reversed the Supreme Court’s decision granting the defendant’s motion to dismiss the complaint for failure to state of cause of action, finding that the defendant’s alleged conduct – berating, ridiculing, and verbally and physically abusing the plaintiff – amounted to more than mere incompatibility or occasional marital discord.
 
Bragar v. Bragar, 246 A.D.2d 334, 667 N.Y.S.2d 364 (1st Dep’t 1998): The Supreme Court properly denied the plaintiff’s motion to amend the complaint to add a cause of action for cruel and inhuman treatment, since the plaintiff had failed to allege serious misconduct, which course of conduct was harmful to the physical or mental health of the plaintiff and made cohabitation unsafe or improper.

Rose v. Rose, 167 Misc.2d 562, 637 N.Y.S.2d 1002 (Sup. Ct. N.Y. Co. 1995): The court denied the wife’s motion to amend the complaint because a shareholder’s agreement could not form the foundation for a conversion divorce. The parties had not entered into the agreement with the intent of acknowledging that their marriage was dead.

Getz v. Getz, 130 A.D.2d 710, 516 N.Y.S.2d 26 (2nd Dep’t 1987): The Appellate Division reversed the order of the Supreme Court which denied the plaintiff’s motion for leave to serve a supplemental complaint with additional allegations of cruel and inhuman treatment. The plaintiff’s proposed supplemental complaint was deemed served. The defendant had failed to demonstrate that granting the plaintiff leave to serve the supplemental complaint would unduly prejudice her.

I.S. v. R.S., 117 A.D.2d 780, 499 N.Y.S.2d 106 (2nd Dep’t 1986): The Appellate Division dismissed the defendant’s appeal from the trial court’s order denying that branch of the motion which was to strike scandalous and prejudicial matter, as no appeal lies therefrom as a matter of right. The plaintiff’s third cause of action, which set forth one instance of cruel and inhuman treatment, should have been dismissed as time barred under the Statute of Limitations.

Howes v. Howes, 108 Misc.2d 146 (Sup. Co. Nassau County, March 19, 1981): The Defendant’s motion to dismiss the divorce action based on the plaintiff’s failure to meet residency requirements of DRL §230 and CPLR 3211(a)(2) was denied.

Housing
Hascoe v. Hascoe, 298 A.D.2d 192, 748 N.Y.S.2d 138 (1st Dep’t 2002): The Appellate Division affirmed the Supreme Court’s order, which denied the defendant’s motion to impose conditions upon her performance of the parties’ agreement. The defendant may not unilaterally attempt to condition her continued performance of the agreement upon the plaintiff providing her, pendente lite, with assets sufficient to enable her to purchase a substitute residence.

Miscellaneous
Frydman v. Frydman, 32 A.D.3d 455, 821 N.Y.S.2d 221 (2nd Dep't 2006): The Appellate Division dismissed the plaintiff’s appeal of the trial court’s denial of her oral application for a determination that the defendant had not complied with the provision in the stipulation of settlement requiring him to make a $10,000 lump sum payment to her as no appeal lies as of right from an order that does not decide a motion made on notice.

CBB Entertainment v. Korn, 240 A.D.2d 184, 658 N.Y.S.2d 866 (1st Dep’t 1997): The Appellate Division found that the appellant had not preserved for appellate review the errors he had assigned to the trial court’s jury instructions.

Mayer v. Mayer, 164 Misc.2d 320, 624 N.Y.S.2d 749 (Sup. Ct. N.Y. Co. 1995): Despite abatement of this action, the proper disposition of money placed in escrow in this action was an appropriate subject of an order of the Supreme Court, not the Surrogate’s Court, because the placement of funds in escrow required relinquishment of any right of possession or control of the funds by the grantor and, upon the occurrence of the event described in the escrow agreement, the property became that of the depository or agent to turn over pursuant to the terms of the escrow agreement.

Matter of Springer, 148 Misc.2d 626, 561 N.Y.S.2d 356 (Sup. Ct. N.Y. Co. 1990): The court granted the wife’s motion to intervene in the dissolution proceeding of a corporation in which the husband had a 50% interest in order to preserve or protect the marital assets for the purpose of future equitable distribution.
Haskell v. Haskell, 145 A.D.2d 465, 536 N.Y.S.2d 697 (2nd Dep’t 1988): The Appellate Division reversed the trial court order and reinstated the fraud action and consolidated the divorce action with the fraud action.  The husband’s stock in the corporate defendant in the fraud action represented a significant marital asset, the value of which had been found to have been substantially and deliberately diminished. Therefore, the wife was permitted to maintain an action to preserve the asset’s value.
Nathel v. Nathel, 55 A.D.3d 434 (1st Dep't. 2008):  The Appellate Division affirmed the Supreme Court order, which limited the scope and duration of the plaintiff’s deposition of the defendant. The trial court properly exercised its discretion in denying the plaintiff’s application to preclude the defendant from introducing two expert reports that were served after the deadline set by the court. However, the trial court improvidently exercised her discretion in precluding the plaintiff from using a real estate appraisal of the marital residence prepared or to be prepared pursuant to a court-ordered stipulation.
Power of Court
Teich v. Teich, 240 A.D.2d 258, 658 N.Y.S.2d 599 (1st Dep’t 1997): The Appellate Division affirmed the trial court’s decision to deny the plaintiff’s motion to compel the defendant to file joint income tax returns in place of the separate returns already filed since, pursuant to Federal tax law, each spouse had the unqualified freedom to decide whether or not to file a joint return.

Relocation
Papasoff v. Cockrell, 12 A.D.3d 259, 786 N.Y.S.2d 2 (1st Dep’t 2004): The petitioner father was entitled to the full amount of fees incurred by him in litigating the respondent’s relocation of the parties’ daughter to Colorado including fees incurred by him in connection with the instant application.

Spousal Torts
Lesesne v. Lesesne, 292 A.D.2d 507, 740 N.Y.S.2d (2nd Dep’t 2002): The parties had entered into a post-nuptial agreement that included a non-molestation clause, which was incorporated into the judgment of divorce. The plaintiff asserted a total of six causes of action against the respondent, including breach of contract because he had alleged that the respondent and/or her other former husband had engaged in an extended campaign of harassment against him. The Appellate Division held that the Supreme Court had improperly dismissed the husband’s cause of action to recover damages for breach of contract because the postnuptial agreement was an enforceable contract between the parties. The plaintiff’s verified complaint had sufficiently alleged that the respondent had breached the non-molestation provision of the postnuptial agreement.  

Validity of Agreements
Howard v. Howard, 134 A.D.2d 571, 521 N.Y.S.2d 471 (2nd Dep’t 1987): The Appellate Division affirmed the Supreme Court’s order, which had denied the defendant’s motion for summary judgment dismissing the complaint and granting him a conversion divorce on his counterclaim. The issues of fact warranted a trial on the validity of the parties’ separation agreement.

Filstein v. Bromberg, 36 Misc. 3d 404 (N.Y. Sup. Ct. 2012): The Supreme Court granted the husband’s motion for partial summary judgment as the wife had failed to raise a triable issue of fact. It dismissed the wife’s counterclaim, which sought a declaratory judgment for recision of the separation agreement due to unconscionability as both parties had been represented by counsel, counsel drafted the agreement, and the wife herself was an attorney. The agreement obligating the parties to sell their apartment before they could divorce contravened public policy and was thus unenforceable.


 

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