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GARY G., Plaintiff, v. ELENA A.G., Defendant.
Upon the foregoing papers in this prejudgment divorce action, defendant Elena A.-G. (defendant) moves by order to show cause, in motion (mot.) sequence (seq.) 4, for an order: (A) pursuant to Domestic Relations Law § 240, directing that her attorney may release the forensic report of the court-appointed neutral expert, Isaac Benzaquen, Ph.D., to defendant's expert, Peter J. Favaro, Ph.D., so that he may offer testimony and assist in the process of creating effective tools for the cross-examination of Dr. Benzaquen; (B) directing Dr. Benzaquen to release all documents, notes, recordings and other raw data collected in the process of the forensic evaluations for the purpose of allowing Dr. Favaro to review these materials; and (C) pursuant to CPLR 3101 (d) (1), granting defendant additional time to interpose her disclosure. In a separate motion brought by order to show cause, defendant moves for in limine relief in the form of an order excluding prejudicial evidence at the custody trial. In particular, defendant seeks an order excluding all transcripts from the prior hearing on exclusive use and occupancy of the former marital residence as well as all transcripts from the prior hearing on the issue of custody and visitation. In addition, defendant seeks an order excluding the March 20, 2018 and January 29, 2017 forensic reports of Dr. Benzaquen at trial or, alternatively, conditionally precluding the admission of Dr. Benzaquen's forensic reports at trial pending production of the notes and raw data relied upon. Finally, defendant seeks an order directing that a de novo custody trial is required under Judiciary Law § 21.1
Deborah Garibaldi, the court appointed attorney for the child, moves, in mot. seq. 5, for an order directing the entry of a money judgment in the sum of $11,909.63, representing $10,909.63 in unpaid legal fees and an additional $1,000 for legal fees in connection with the making of this motion. Plaintiff Gary G. (plaintiff) cross-moves, in mot. seq. 6, for an order taking judicial notice of the exhibits and testimony given in the prior exclusive use and occupancy hearing and the partial custody hearing which was scheduled to continue on April 14, 2021. Plaintiff further cross-moves for an order precluding defendant's proposed expert, Dr. Carlos Nunez, from testifying at the custody hearing.
Background Facts and Procedural History 2
The parties were married on August 21, 2011, in a religious ceremony and one child (currently seven years old) was born to the marriage. On September 24, 2015, plaintiff commenced the instant divorce action in Queens County Supreme Court by filing a summons and complaint under Queens County Index No. 11641/15. Among other things, the complaint asserted a cause of action seeking a judgment of divorce pursuant to Domestic Relations Law § 170 (7) based upon the irretrievable breakdown of the marriage for a period of at least six months. On December 3, 2015, defendant interposed an answer which contained a single counterclaim seeking a judgment of divorce pursuant to Domestic Relations Law § 170 (7) based upon the irretrievable breakdown of the marriage for a period of at least six months.3 On February 17, 2016, Deborah Garibaldi, Esq., was appointed to represent the interests of the parties' child in this matter. On January 29, 2017, Dr. Isaac Benzaquen, a court-appointed forensic evaluator, issued a report after performing a forensic custody evaluation of the parties' child. On March 20, 2018, Dr. Benzaquen issued an updated report after performing a second evaluation of the parties' child.
On March 4, 2019, after holding a hearing on the matter, Queens County Supreme Court Justice Jodi Orlow issued a decision and order which granted plaintiff's motion for an order awarding him temporary exclusive use and occupancy of the parties' marital home located at 7031 108th Street Apartment 6A, Forest Hills, NY This order was subsequently affirmed by the Appellate Division, Second Department (see 185 AD3d 1012 ).
On April 17, 2017, June 22, 2018, June 25, 2018, and February 21, 2019, a hearing on the issue of custody was held before Justice Orlow. However, before the custody hearing was completed, Justice Orlow recused herself from the case. On October 17, 2019, Deputy Chief Administrative Judge for the Courts inside the City of New York George J. Silver issued Administrative Order No. 318 transferring this case from Queens County Supreme Court to this Justice in his capacity as the Statewide Coordinating Judge for Matrimonial Cases. Thereafter, the case was assigned Kings County Index No. 55468/19.
On or about February 18, 2020, defendant moved, by order to show cause, for an order seeking various relief including leave to file an amended complaint with counterclaims, directing that an updated forensic report be conducted, permitting Defendant to borrow money from her 401 K savings plan and leave to renew Justice Orlow's March 4, 2019 order. On January 4, 2021, this court issued a 19 page decision and order which largely denied defendant's motion. This order further directed that the trial on custody would commence on April 14, 2021.
On March 8, 2021 and April 1, 2021, the court heard oral argument on the instant motions. Thereafter, the court reserved decision on the motions and postponed the trial date. The Court directed (in order to prevent any further delay), that no other motions could be made without Court permission except for the request for an order of protection or any application that relates to urgent safety issues. The court's rulings on the motions now follow.
The court first addresses the parties' respective motions regarding the custody trial. In particular, defendant seeks an order directing that a de novo custody trial be conducted before this court, while plaintiff seeks to have the court take judicial notice of the exhibits and testimony given in connection with the custody hearing before Justice Orlow, and for the instant court to continue the hearing. In support of this branch of her motion, defendant maintains that, under Judiciary Law § 21 as well as relevant case law, this court may not continue the custody hearing began by Justice Orlow. Instead, defendant argues that a de novo custody hearing must be commenced by this court. In opposition to this branch of defendant's motion, and in support of his own motion for an order directing the custody hearing be continued before this court, plaintiff argues that Judiciary Law § 21 only precludes a Judge from deciding motions which were argued before another Judge and does not apply to hearings. In addition, plaintiff contends that the Appellate Division, Second Department specifically ruled in the case of McAvoy v Hannigan (107 AD3d 960 , lv denied 22 NY3d 854 ) that Judiciary Law § 21 does not prevent a Supreme Court Justice from continuing a trial previously conducted before a different Justice. Finally, plaintiff maintains that his position is further supported by the Court of Appeals' ruling in People v Thompson (90 NY2d 615 ).
Judiciary Law § 21 provides that, except in appellate courts, a Judge “shall not decide or take part in the decision of a question which was argued orally in the court, when he was not present and sitting therein as a judge.” In interpreting this provision, the Court of Appeals and Appellate Divisions of the First and Second Department have ruled that the statute does not preclude a successor Judge from determining a motion argued before another Judge so long as purely legal questions are involved (People v Hampton, 85 AD3d 1055, 1056 , affd 21 NY3d 277 ; Plunkett v Emergency Med. Serv. of NY City, 234 AD2d 162, 163 ). Similarly, Judiciary Law § 21 “does not prevent the substitution of a Judge in a jury trial since the ultimate determination of guilt or innocence belongs to the jury and not the Trial Judge” (People v Thompson, 90 NY2d 615, 621 ). However, it necessary follows from these rulings that when a Judge acts as a fact finder and is required to weigh the credibility of witnesses, Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge (People v Massey, 191 AD3d 1488 ; People v Banks, 152 AD3d 816, 818 ; Matter of Connelly-Logal v West, 272, AD2d 920 ; Matter of Fellows v Fellows, 25 AD2d 865 ). In such cases, a new hearing or trial before the successor Judge is required.
Here, the issues before Justice Orlow during the custody hearing that she presided over were not purely legal in nature. To the contrary, Justice Orlow was acting as a fact finder and was required to weigh the credibility of the witnesses who testified before her, including defendant and Dr. Benzaquen. Under the circumstances, this court is precluded by Judiciary Law § 21 from taking judicial notice of the prior testimony before Judge Orlow and continuing on with the custody hearing. Instead, a de novo custody hearing must be conducted before this court.
In reaching this conclusion, the court finds no merit to plaintiff's argument that the rulings in Thompson and McAvoy permit this court to take judicial notice of the transcript in the custody hearing before Justice Orlow and to continue on with the hearing. As previously noted, Thompson involved a jury trial and the jury would make the ultimate determination of guilt or innocence. This is clearly distinguishable from a custody hearing in a matrimonial action where the Judge is the trier of fact. Moreover, in McAvoy, the successor Judge “heard testimony from necessary witnesses and conducted an in camera interview of the child” (McAvoy, 107 AD3d at 963). Thus, the successor Judge was able to properly weigh the credibility of these witnesses. Here, significantly the court has had no such opportunity and cannot weigh the credibility of the witnesses who testified before Justice Orlow simply by taking “judicial notice” of the transcript from the prior hearing, which was not concluded and then just accept the testimony as true. Accordingly, that branch of defendant's motion for an order directing a de novo custody trial is granted and that portion of the plaintiff's cross motion for an order directing that the custody hearing be continued after taking judicial notice of the prior exhibits and testimony given in the exclusive use and occupancy and the temporary custody hearings before Justice Orlow is denied to the extent indicted herein. The decisions after evidentiary hearings by Judge Orlow, the appellate review and the record relied upon in making those decisions are law of the case and the Court will give them appropriate consideration.
Defendant moves for an in limine order excluding any and all transcripts from the prior hearings on custody and exclusive use and occupancy of the former martial residence during the de novo custody hearing to be held before this court. In support of this branch of her motion, defendant cites to several appellate court decisions which ruled that lower courts committed reversible error in admitting the transcripts of testimony from witnesses at prior proceedings. In particular, defendant points to Matter of Louie L.V. (Virzhiniya T.V.), (176 AD3d 1081 ), Matter of Beth M. v Susan T., (81 AD3d 1396 ), and Matter of Raymond J., (224 AD2d 337 ). Defendant further maintains that the transcripts of the hearings are of limited probative value which is substantially outweighed by the danger that their admission would prejudice her, confuse the issues and prolong the proceedings.
Defendant has failed to set forth a valid basis for excluding the transcripts containing the testimony taken at the prior hearings if properly introduced. As defendant's own papers concede, under CPLR 4517 (a) (1), the prior testimony of any party who testified at the hearings before Justice Orlow is admissible to contradict or impeach that witness's testimony at the de novo hearing. Moreover, the cases which defendant cites in support of her motion are readily distinguishable from the facts in the instant matter. In particular, in all of the cases cited by defendant, the lower courts admitted the transcripts of witnesses who testified at earlier hearings without first determining whether those witnesses were unavailable to testify at the subsequent hearings. Here, the court is conducting a de novo custody hearing at which the witnesses who previously testified before Justice Orlow, including defendant and Dr. Benzaquen, will again have to testify and be subject to cross examination. To be clear, the transcripts cannot be used to substitute for testimony in this trial except as permitted by CPLR 4517 which provides that they can be used to contradict or for impeachment purposes.
Also without merit is defendant's argument that the introduction of the deposition transcripts from the prior use and occupancy and custody hearings would be unduly prejudicial. In this regard, defendant was represented by counsel while testifying during these hearings. Further, defendant has failed to offer any support for her claim that she would be prejudiced by introducing the transcript from the prior custody hearing or any deposition into evidence. In addition, defendant's argument that she would be prejudiced by introducing the transcript from the use and occupancy hearing into evidence is baseless. In particular, defendant points to purported errors made by Justice Orlow while conducting the hearing. However, the Appellate Division, Second Department rejected these same arguments when it affirmed Justice Orlow's ruling on use and occupancy of the marital residence (see 185 AD3d at 1012). Defendant also claims that one of the witnesses who testified at the use and occupancy hearing was paid to offer false testimony. This same claim formed the basis for defendant's previous motion, in mot seq. 1, for leave to renew Justice Orlow's March 4, 2019 order. However, defendant withdrew this motion and in so doing, abandoned her claims regarding this alleged false testimony.
Accordingly, that branch of defendant's motion which seeks an order excluding any and all transcripts from the prior hearings on custody and exclusive use and occupancy during the de novo custody hearing before this court is denied.
Defendant moves for an order excluding Dr. Benzaquen's January 29, 2017 and March 20, 2018 forensic reports from evidence at the de novo custody trial. In support of this branch of her motion, defendant contends that in compiling his reports, Dr. Benzaquen did not rely on scientific principles. Defendant further argues that Dr. Benzaquen failed to offer independent evidence of reliability of the collateral sources or hearsay materials upon which his opinions are based.
In opposition to this branch of defendant's motion, plaintiff notes that Dr. Benzaquen's reports were admitted into evidence at both hearings before Justice Orlow and defendant's former counsel raised no objections to the admission of the reports at those times. In addition, plaintiff maintains that any alleged deficiencies in the reports can be addressed by defendant during cross examination. Finally, plaintiff maintains that the case law that defendant relies upon in support of her motion to exclude the reports is readily distinguishable from the facts in this case.
As an initial matter, the court notes that Dr. Benzaquen's reports were admitted into evidence without objection at both the exclusive use and occupancy hearing and the custody hearing before Justice Orlow. Under the circumstances, defendant waived any objection to the admission of the reports at the de novo custody hearing (Matter of Meluch v New York State and Local Police and Fire Retirement Sys., 80 AD3d 976, 977 ). In any event, defendant has failed to identify any defects in the reports which warrant the striking of the reports as Dr. Benzaquen reached his conclusions “based on his personal observations and experience” (Matter of Chana J.A. v Barry S., 135 AD3d 743, 744 , lv dismissed and denied 27 NY3d 1059 ). Moreover, any alleged deficiencies in the reports can be addressed during Dr. Benzaquen's cross examination at the de novo custody hearing. Similarly, any individuals to whom Dr. Benzaquen spoke can be called as witnesses at the hearing where they will be subject to cross examination (Straus v Strauss, 136 AD3d 419, 420 ). Accordingly, that branch of defendant's motion which seeks to exclude the reports from evidence at the custody hearing is denied.
Defendant also moves for an order permitting her to release Dr. Benzaquen's forensic reports to Peter J. Favaro, PhD, so that he may assist in the process of creating effective tools for the cross examination of Dr. Benzaquen. In this regard, Dr. Favaro is a psychologist who has been retained by defendant to conduct a peer review of Dr. Benzaquen's reports. Further, defendant seeks an order directing that Dr. Benzaquen release all documents, notes, recordings, and other raw data collected in the process of the forensic evaluation for purposes of having Dr. Favaro review these materials. Finally, defendant seeks an order granting her additional time to provide the expert disclosure required by CPLR 3101 (d) (1).
In support of these branches of her motion, defendant initially notes that she is entitled to retain her own expert to challenge the findings of Dr. Benzaquen in his reports. Defendant further points to alleged problems and defects in Dr. Benzaquen's reports. Moreover, defendant argues that in order for Dr. Favaro to properly analyze Dr. Benzaquen's reports, and to assist her attorney in preparing for the cross examination of Dr. Benzaquen, it is necessary that he be given access to the reports as well as all documents, notes, recordings, and other raw data collected by Dr. Benzaquen in the process of the forensic evaluation. In this regard, defendant points to recent case law which holds that there is a rebuttable presumption that these documents, notes, recordings, and raw data collected by court forensic evaluators are discoverable materials in matrimonial actions. Finally, defendant argues that she has shown good cause for failing to timely provide the expert notice required under CPLR 3101 (d) (1). In particular, defendant notes that her new counsel was not provided with Dr. Benzaquen's forensic reports until January 26, 2021. Defendant further contends that once her attorney reviewed the reports and became aware of the need for a peer review, he contacted plaintiff's attorney, via email on January 29, 2021, in an attempt to obtain a stipulation releasing Dr. Benzaquen's reports and underlying data to Dr. Favaro, and for Dr. Favaro's CPLR 3101 (d) disclosure to be submitted on or before March 14, 2021. However, plaintiff's attorney failed to respond to this email, thereby necessitating the filing of the instant motion.
In opposition to this branch of defendant's motion, plaintiff maintains that the motion is untimely and must be denied. In particular, plaintiff notes that defendant cannot comply with the timely disclosure of expert information required under CPLR 3101 (d) (1). Similarly, plaintiff points out that defendant cannot comply with Kings County Supreme Court Uniform Civil Term Rules, Part K - Uniform Matrimonial Rules, which requires that expert reports are to be served no later than 30 days before trial. In this regard, plaintiff notes that Dr. Favaro has not even begun to prepare his peer review report of Dr. Benzaquen's forensic reports notwithstanding the fact that the custody hearing was scheduled to commence on April 14, 2021.
Plaintiff further contends that defendant cannot demonstrate good cause for her delay in preparing a peer review report and providing the expert disclosure required under CPLR 3101 (d) (1). In this regard, plaintiff notes that Dr. Benzaquen issued his first forensic report on January 29, 2017 and his second report on March 30, 2018. However, defendant waited until March 11, 2021 before making the instant motion. Plaintiff further notes that defendant retained her present counsel in or about May of 2019 and that said counsel made a motion seeking discovery on July 29, 2020. However, defendant did not seek Dr. Benzaquen's notes, recordings, and other raw data at that time. Further, to the extent that defendant's counsel did not have copies of the reports, he did not seek to obtain copies when he moved for discovery on July 29, 2020. Instead, defendant waited until after the court issued its January 4, 2021 order directing that the custody hearing was to commence on April 14, 2021 to attempt to challenge Dr. Benzaquen's findings by retaining Dr. Favaro.
Plaintiff also argues that, were the court to permit Dr. Favaro to prepare a peer review report, it would cause extensive delays. In particular, plaintiff points out that Dr. Favaro has not yet prepared a report inasmuch as he does not currently have access to the forensic reports or notes and raw data prepared in connection with the reports. Plaintiff also contends that he would be prejudiced by any such report since he would not have sufficient time to respond to Dr. Favaro's report. In addition, plaintiff notes that defendant's conduct in this case, including retaining no less than seven [sic] different attorneys to represent her, has already caused extensive delays in this matter.
As a final matter, plaintiff maintains that neither defendant nor Dr. Favaro are entitled to examine the documents, notes, recordings, and other raw data collected by Dr. Benzaquen in the process of performing the forensic evaluations. In support of this contention, plaintiff points to certain case law which holds that these types of materials are not subject to discovery except under special circumstances, which are not present in the instant case.
The court turns first to the issue of whether or not the documents, notes, recordings, and other raw data collected by Dr. Benzaquen in conducting the forensic evaluations are discoverable. While there are no Appellate Division decisions ruling on this issue, older trial court rulings have held that this material is not subject to discovery unless special circumstances are demonstrated such as bias on the part of the forensic evaluator (see Ochs v Ochs, 193 Misc 2d 502, 509-510 ; Feuerman v Feuerman, 112 Misc 2d 961 ). However, more recent trial court decisions have held that there is a rebuttable presumption that this material is subject to discovery (J.F.D. v J.D., 45 Misc 3d 1212[A] ; K.C. v J.C., 50 Misc 3d 892 ). These later decisions found that the weight to be afforded a forensic report should be measured, not just by the report's conclusions, but by the process taken to reach those conclusions (id.).
Here, the court is in complete agreement with the more recent trial court rulings and finds that the documents, notes, recordings and other raw data collected by Dr. Benzaquen in the process of performing the forensic evaluations are subject to discovery.4 Accordingly, the court directs that Dr. Benzaquen provide these materials to defendant's counsel, plaintiff's counsel, as well as Ms. Garibaldi.5
The court next turns to those branches of defendant's motion which seek an order directing that Dr. Benzaquen's forensic reports and documents, notes, and raw data be released to Dr. Favaro, and that defendant be given additional time to interpose her CPLR 3101 (d) (1) expert disclosure. CPLR 3101 (d) (1) provides that “each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the ground for each expert's opinion.” The statute further provides that “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph.”
Here, while defendant's counsel could have been more diligent in obtaining copies of Dr. Benzaquen's reports, defendant has shown good cause for failing to retain Dr. Favaro in a timely manner. In particular, defendant's attorney did not obtain copies of the reports until January 26, 2021. Furthermore, contrary to plaintiff's claim, the transcript of Dr. Benzaquen's testimony in the custody hearing before Justice Orlow is not contained in the Queens County Clerk's Minutes filed in NYSCEF.6 Under the circumstances, defendant's attorney is granted leave to release the forensic reports and associated documents, notes, recordings, and raw data to Dr. Favaro so that he may assist in the process of creating effective tools for the cross examination of Dr. Benzaquen and his report. Further, defendant is to provide the expert disclosure required under CPLR 3101 (d) (1) within 20 days after defendant's attorney receives the forensic reports and associated data from Dr. Benzaquen. In order to prevent any further delay any such report must be exchanged by July 20, 2021.
Dr. Nunez's Report
Plaintiff cross-moves for an order precluding defendant's expert, Carlos Nunez, M.D., from testifying at the custody hearing. In this regard, on March 2, 2021, defendant served plaintiff with a letter by Dr. Nunez, who is an endocrinologist, stating that he has reviewed the medical records of the parties' child and that based upon his review of these records, he has determined that the child's weight is at the 99 percentile for his age and sex and that this presents health risks. In moving to preclude Dr. Nunez from testifying at trial, plaintiff contends that defendant failed to comply with 22 NYCRR 202.16 (g), which requires that all expert reports be exchanged no less than 60 days prior to trial. Plaintiff further contends that the opinions expressed by Dr. Nunez in his report are speculative, conclusory, and bereft of facts. In this regard, plaintiff notes that Dr. Nunez did not state that his opinion was given to a reasonable degree of medical certainty. Further, plaintiff maintains that Dr. Nunez's opinion is not reliable inasmuch as it was based upon unspecified medical records and Dr. Nunez did not examine the parties' child.
There is no merit to plaintiff's claim that Dr. Nunez should be precluded from testifying at trial due to the failure to comply with 22 NYCRR 202.16 (g). In particular, Kings County Supreme Court Uniform Civil Term Rules, Part K - Uniform Matrimonial Rules, only requires that expert reports are to be served no later than 30 days before trial. In any event, the commencement of the custody hearing has been delayed as a result of the instant motions before the court and more than 60 days have passed since defendant served plaintiff with the expert disclosure required under CPLR 3101 (d) (1) (Rowan v Cross County Ski & Skate, 42 AD3d 563, 564 ). Further, precluding Dr. Nunez from testifying at trial is not warranted. In particular, “preclusion of a witness's testimony is a drastic measure” (Reed v New York State Electric & Gas Corp., 183 AD3d 1207 1214 ). Any challenges in Dr. Nunez's reports regarding the medical records that he relied upon and the basis for his conclusions can be addressed at the time of trial through the raising of objections and cross examination. Any challenge to Dr. Nunez being called as a witness can also be addressed at trial prior to his testimony.
Ms. Garibaldi's Motion
Deborah Garibaldi, the court-appointed attorney for the parties' child, moves for a money judgment against defendant in the amount of $11,909.63, representing $10,909.63 in unpaid legal fees and an additional $1,000 for legal fees in connection with the making of her motion. In support of her motion, Ms. Garibaldi submits a copy of the order which appointed her as the child's attorney. In particular, this order directs that defendant is responsible for paying 50% of her compensation at an hourly rate of $200 per hour. Ms. Garibaldi further submits copies of her time sheets/billing records which indicate that defendant has an outstanding balance due to Ms. Garibaldi's firm of $10,909.63. In addition, Ms. Garibaldi seeks $1,000 in counsel fees in order to cover the time and expense that she incurred in making this motion. However, after making the instant motion, Ms. Garibaldi submitted additional billing records which indicate that she expended only $645 in making instant motion. Thus, Ms. Garibaldi seeks an award of attorney's fees against defendant in the amount of $11,554.63.
Defendant does not oppose Ms. Garibaldi's motion. Furthermore, at oral argument before the court, defendant's attorney indicated that his client was attempting to secure a loan in order to pay Ms. Garibaldi.
Here, Ms. Garibaldi has submitted sufficient proof that she is owed $11,554.63 by defendant for legal services rendered as the attorney for the parties' child. Indeed, defendant does not dispute this. Accordingly, Ms. Garibaldi's motion is granted, and defendant is directed to pay her the $11,554.63 due within 21 days of service of a copy of this order with notice of entry. In the event that defendant fails to make this payment as directed, Ms. Garibaldi may enter a judgment for the full amount due and owing, plus statutory interest and costs, with the Clerk of the Court upon 10 days written notice by certified and regular mail to both attorneys and without further application to this court.
The Court notes that vast sums of money have been expended by these parties on this litigation. The Court upon hearing at oral argument that there were substantial sums due and owing to the Attorney for the Child directed counsel to provide an accounting of payments made by each party to date. According to the Attorney for the Child the Plaintiff paid $15,710.07 and currently owes the Attorney for the Child $230 while the Defendant owes the Attorney for the Child $11,784.63. According to the Plaintiffs affidavit he has paid his present attorney Richard A. Danzig's of The Law Offices of Richard A. Danzig $373,049.25, $316,694.98 of it paid by himself and $87,406.27 paid for by relatives and still owes $14,267.50. He has also paid expert fees of $11,500.00, $5,002.00 in appellate costs in connection to Defendant's appeals and he asserts $14,550.00 to the Attorney for the Child. According to Defendant's affidavit the Defendant has paid or owes approximately $714,445.77 over the course of this case she has had 8 different attorneys [6 trial counsel and 2 appellate counsel] and firms, court appointed forensic expert fees, court appointed Attorney for the Child fees and forensic peer review fees. The Defendant has used her own salary, bank loans and loans from friends and family to pay these fees and still owes a substantial sum. The Defendant has already paid Jeffrey Straus Esq., of Wachtel Missry LLP, approximately $47, 325.00 ($37,325.00 paid by the Defendant and $10,000.00 paid by a Banker Health Care Loan), Richard Hause Esq, of Samuelson Hause & Samuelson, LLP approximately $70,000 ($30,000 paid in loans from a relative, $30,000 paid by a Banker Health Care Loand and $10,000 paid by a loan from a separate relative), Sadatu Salami-Oyakhilome, Esq., approximately $7,000 ($7,000 paid by the Defendant), Michael Freeman, Esq., approximately $15,000 ($15,000 paid in loans from a relative), Gemelli Gross & Dujmic, P.C., approximately $50,036.00 ($15,000 paid in loans from a relative, $5,000 paid in loans by a friend and $30,000 paid by a Banker Health Care Loan), Chris Chimery, Esq., approximately $10,000.00 ($10,000 paid in loans from a relative), The Law Office of Anthony Capetola approximately $15,000 ($15,000 paid in loans by a relative) and the Levoritz Law firm (her current counsel) approximately $229,000.00 ($209,000 by in loans by a relative and $20,000 paid directly from the Defendant). The Defendant continues to owe Jeffrey Straus Esq., of Wachtel Missry LLP, approximately $113,214.08, Richard Hause Esq, of Samuelson Hause & Samuelson, LLP approximately $7,000, Gemelli Gross & Dujmic, P.C., approximately $10,000 and the Levoritz Law firm approximately $85,561,80.
The mother has actually paid approximately $453,361.00 in counsel fees to her attorneys alone, in expert fees she has paid $17,500.00, in Attorney for the Child fees $15,600.13 and still has $11,139.63 she owes to the Attorney for the Child. The role of the Attorney for The Child is an important one to say the least. She is the independent voice of the child and the order appointing her is at an hourly rate far less than the standard hourly rate for attorneys. For the other attorneys to be retained at substantial retained amounts and the AFC not to be paid by the mother is problematic and will not be sanctioned.
In summary, the court rules as follows: (1) that branch of defendant's motion, in mot. seq. 4, which seeks an order directing that her attorney may release the forensic reports of Dr. Benzaquen to Dr. Favaro is granted; (2) that branch of defendant's motion which seeks an order directing Dr. Benzaquen to release all documents, notes, recordings and other raw data collected in the process of the forensic evaluation for the purpose of allowing Dr. Favaro to review these materials is granted to the extent that Dr. Benzaquen is to release this material to the parties' attorneys as well as to Ms. Garibaldi; (3) that branch of defendant's motion which seeks additional time to interpose her CPLR 3101 (d) (1) disclosure is granted to the extent that defendant is to interpose this disclosure within 20 days after defendant's attorney receives the forensic reports and associated data from Dr. Benzaquen; (4) that branch of defendant's in limine motion which seeks an order excluding from the new custody hearing all transcripts from the prior hearings on exclusive use and occupancy and custody is denied; (5) that branch of defendant's in limine motion which seeks an order excluding Dr. Benzaquen's forensic reports at the custody hearing is denied; (6) that branch of defendant's in limine motion which seeks a de novo hearing on the issues of custody and visitation is granted. (7) Ms. Garibaldi's motion, in mot. seq. 5, for an order awarding her legal fees and expenses against defendant is granted; (7) that branch of plaintiff's cross motion, in mot. seq. 6, which seeks an order taking judicial notice of the prior exhibits and testimony in the prior exclusive use and occupancy and custody hearings, and continuing the custody hearing previously commenced before Justice Orlow is denied; and (8) that branch of plaintiff's cross motion which seeks an order precluding Dr. Nunez from testifying at the custody hearing is denied.
The prior order of the Court restricting the filing of any more motions or orders to show cause with first seeking Court permission via a conference call is continued. The only exception is relief related to safety issues and of course an order of protection.
The Court would note that the Defendant has filed a list of witnesses or intended witness that lists 35 individuals including the Defendant, Plaintiff, Plaintiff's Mother, eight friends, three of her child's friends parents, five department of education staff, four therapists, five medical staff/doctors, two porters, three doormen and a private investigator. In doing so it appears that the Defendant intends on being on trial for weeks if not months. Given that the AFC is also on the assigned counsel plan in Family Court these parties must recognize the limits of judicial proceedings and the ability of the Court to control its calendar so that the judicial resources of the Court are not imposed upon in a way that will deny meaningful access to the public and other lawyers. Thus the Court will require offers of proof before each witness other than the parties and expert forensic. “The defendant's contention that his constitutional rights to due process and to present a defense were violated when the trial court precluded him from calling two witnesses who would purportedly testify in support of his defense is unpreserved for appellate review (see CPL 470.05; People v Lane, 7 NY3d 888, 860 NE2d 61, 826 NYS2d 599 ). In any event, this contention is without merit. The trial court has broad discretion in determining the materiality and relevance of proffered evidence (see generally Caplan v Tofel, 58 AD3d 659, 871 NYS2d 656 ). Here, the defendant failed to make a sufficient offer of proof that the proposed testimony was relevant, offered in good faith, and not cumulative of other testimony. Therefore, the trial court properly precluded the defendant from calling those witnesses to testify, and this ruling did not deprive the defendant of his constitutional rights to due process and to present a defense.” See People v Greene, 110 AD3d 827, 973 N.Y.S.2d 239 [2nd Dept 2013]
A pre-trial conference and selection of trial dates shall be held on August 10, 2021 at 10 A.M.
Counsel and the parties are reminded that this Court intends on holding an expedient trial on the issues. The purpose of this trial is not to revisit each and every decision made by the parties but to determine the best interest of the child and not the best interest of the parties desire. It is not the role of the judicial process to provide the parties unfettered access to scarce judicial resources to the detriment of others who need judicial intervention. These parties have been in litigation for almost six years and most of the child's life and it is now time for it to come to an end. As noted by Justice Breitel writing unanimously for the 1St Department Appellate Division in 1957 noted “it is ancient and undisputed law that courts have an inherent power over the control of their calendars, and a disposition of business before them, including the Order in which disposition will be made of that business. Plachte v. Bancroft, Inc., 3 AD2d 437, 161 N.Y.S.2d 892 (1957).
This constitutes the decision and order of the court.
1. This in limine motion has not been assigned a motion sequence number on NYSCEF.
3. Defendant interposed a second answer on September 19, 2017 which also asserted a counterclaim seeking a judgment of divorce pursuant to Domestic Relations Law § 170 (7).
4. “The recommendations of court-appointed experts, and the position of the attorney for the child, are factors to be considered and are entitled to some weight, but such recommendations and position are not determinative and do not usurp the judgment of the trial judge (see Matter of Nikolic v Ingrassia, 47 AD3d 819, 821, 850 NYS2d 539 ; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917, 830 NYS2d 557 ; Miller v Pipia, 297 AD2d 362, 365, 746 NYS2d 729 ). Consequently, the Supreme Court was not obligated to adopt the recommendation of the court-appointed forensic evaluator and the position of the attorney for the child, and adequately explained its reasons for disregarding those recommendations and that position (see Vinciguerra v Vinciguerra, 294 AD2d 565, 566, 743 NYS2d 139 ). See Baker v Baker, 66 AD3d 722, 723, 887 N.Y.S.2d 223, 224,[ 2nd Dept 2009]
5. The parties themselves shall not be provided with a copy of the reports or raw materials but are permitted to review these materials in their respective attorney's office with an attorney present.
6. In as much as forensic reports are not permitted to be uploaded to NYSCEF, the testimony of the forensic should not be uploaded either absent Court Permission
Jeffrey S. Sunshine, J.
Response sent, thank you
Docket No: Index No. REDACTED
Decided: June 14, 2021
Court: Supreme Court, Kings County, New York.
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