McGrady v. Rosenbaum

Decision Date13 February 1970
Citation62 Misc.2d 182,308 N.Y.S.2d 181
PartiesPatrick M. McGRADY, Jr., Plaintiff, v. Milton ROSENBAUM, Jean Rosenbaum and Elizabeth Rosenbaum McGrady, Defendants.
CourtNew York Supreme Court

Solomon P. Glushak, New York City, for plaintiff.

Richard H. Kuh, New York City, for defendants.

ARNOLD L. FEIN, Justice.

In this action by Patrick M. McGrady, Jr., against his former wife, Elizabeth Rosenbaum McGrady, and her parents Dr. Milton Rosenbaum and Mrs. Jean Rosenbaum, to recover damages in the sum of $1,005,000, on fourteen causes of action, pleaded in 136 paragraphs, the Rosenbaums move, under CPLR 3211, to dismiss the twelve causes of action pleaded against them for failure to state a cause of action, and for other relief.

The first cause of action, against all three defendants, alleges plaintiff's marriage to defendant Elizabeth on March 3, 1964, the birth of their son on September 3, 1965, the wife's abandonment of plaintiff on December 15, 1965, to take up residence with her parents, her attempt to terminate the marriage by negotiation and agreement, refused by plaintiff, her trip with the child to Nevada in 1966, without plaintiff's knowledge or consent, where she obtained a Nevada unilateral divorce against him, giving her custody of their son, her failure to advise him of her whereabouts or intentions and plaintiff's non-appearance in the Nevada action. The Rosenbaums allegedly financed, induced and physically assisted the abandonment and divorce, including the payment of legal fees, transportation and living expenses and refused to tell plaintiff of the whereabouts of his wife and son and induced the wife to refuse visitation, which they said they would permit if plaintiff entered a separation, divorce and custody agreement with his wife. It is further alleged that all three defendants conspired together to deprive plaintiff of knowledge of the whereabouts and condition of his child, in order to coerce him to enter into an agreement to terminate the marriage, settle property rights and provide for custody of the son to defendants' satisfaction. In habeas corpus proceedings instituted by plaintiff in the Westchester County Supreme Court in November, 1966, that court referred the determination of custody to the Family Court, but ordered that, until such determination, plaintiff should have weekly visitation rights with his son. Plaintiff alleges that such visitation worked out very well until May, 1968, when, with plaintiff's permission, defendant wife and child, together with the wife's parents, the Rosenbaums, went to Israel for a one month visit. The wife and child returned to New York in June 1968, and moved into her parents' home in Larchmont. All costs and expenses of the trip were paid by the Rosenbaums.

On July 3, 1968, without plaintiff's knowledge or consent, defendant wife took their infant son with her to Israel for permanent residence, where they now reside with no intention of returning. Plaintiff alleges the Rosenbaums knew of their daughter's intention to leave and to take up permanent residence with the child in Israel, and that they induced her to do so, and aided, abetted and advised her in so doing, by financing her trip and her residence there, including provision of an apartment in Jerusalem, and by physically assisting in her departure and conspiring with her to withhold such information from plaintiff until after her departure with the child, with the intention that this would remove the child from his father's world, and would interfere with the father's rights of possession and the care and comfort of his child and with a meaningful relationship between them. This was done willfully, unlawfully, deliberately, wantonly and maliciously in violation of plaintiff's rights and the visitation order of the Westchester County Supreme Court, and caused plaintiff great sorrow, pain and auguish, including worry as to the safety and welfare of the child in Israel, and the manner of his upbringing, all to plaintiff's damage in the sum of $1,000,000, including $5,000 expended to determine his son's whereabouts.

The second cause of action, against all three defendants, incorporates the first cause of action, and alleges that these acts were 'malicious and willful', as part of a 'wrongful conspiracy' to deprive plaintiff of his rights, and that defendants endanger the safety of his son by keeping him in Israel.

The third cause of action, against all three defendants, incorporates the first and then alleges that despite orders of the Family Court of Westchester County, directing that the wife return the child to Westchester County and appear and produce him before the court, and that the Rosenbaums appear and testify, none of the defendants, except Dr. Rosenbaum, appeared, that the child was not returned to Westchester County and was not produced before the court, and that temporary custody and visitation rights were awarded to plaintiff, and that all three defendants conspired together to prevent the child from being produced before the court and to defeat plaintiff's temporary custody, visitation and other rights. This cause of action apparently attempts to plead wrongful obstruction of justice, to plaintiff's damage.

The fourth, fifth and sixth causes of action, against all three defendants, incorporate the bulk of the prior causes and allege that: (fourth) defendants willfully conspired maliciously to defeat, impair, prejudice and impede plaintiff's rights and to obstruct justice; (fifth) defendants acted knowingly and deliberately with the malicious intention of injuring plaintiff; (sixth) defendants acted in concert, as part of a conspiracy, knowingly, intentionally, deliberately and maliciously to injure the plaintiff and to inflict harm on him, to his pain, sorrow, anguish and damage.

The seventh cause of action, against all three defendants, incorporates the first and a portion of the second and further alleges that plaintiff was induced to enter into an agreement on December 23, 1966, reciting the Nevada decree of divorce, and consenting to the wife's custody of the child, subject to plaintiff's visitation rights, pursuant to a proviso that 'the best interests of the child * * * will best be served by the continuing interest of, proximity to and contact of the child with his father'. Plaintiff alleges he was induced to enter the agreement by representations by defendants that the wife and child would live in or near New York City, that plaintiff would be permitted regular periodic visitation with and would be consulted as to the care, health, welfare and education of his son, that he would be advised of the child's whereabouts and that the Rosenbaums would provide financial assistance to insure that their daughter and plaintiff's son would live in New York City or nearby, and that such representations were false and fraudulent, in that defendants then intended and planned that plaintiff's wife and child would remove to and permanently live in Israel. Defendants allegedly intended plaintiff to rely on such false representations and plaintiff did rely upon them in entering into the agreement, without knowledge of their falsity, or of defendants' plan and scheme, which they thereafter carried out, to remove his child to Israel for permanent residence, deliberately depriving plaintiff of his rights with respect to his son.

The eighth and ninth causes of action against all three defendants incorporate the bulk of the prior causes and allege that: (eighth) defendants conspired together to commit these acts 'with malicious and willful intent, knowingly and deliberately and intentionally, wrongfully, fraudulently, and unlawfully' to deprive plaintiff of his rights with respect to his son; and (ninth) the agreement of December 23, 1966 provided for plaintiff's visitation with his son, for communication and consultation respecting his son's health, welfare and education, and that the defendants conspired to defeat these rights and to cause plaintiff's wife to breach said agreement in these respects.

The twelfth, thirteenth and fourteenth causes of action against the Rosenbaums, only, incorporate the bulk of the prior causes of action with respect to the December 23, 1966, agreement, and allege that: (twelfth) the Rosenbaums induced their daughter, to breach the December 23, 1966, agreement by wrongful, malicious and fraudulent means, by financing her activities, by 'coddling, indulging and pampering' her, by 'conniving' with her 'to spirit' the child to Israel, thus willfully depriving plaintiff of his rights with respect to his son; (thirteenth) this constituted wrongful, malicious and unlawful interference with plaintiff's rights under the agreement; and (fourteenth) it was part of a wrongful conspiracy maliciously to interfere with and induce the breach by plaintiff's former wife of the provisions of the agreement relating to plaintiff's rights of custody, visitation and control with respect to his son.

Plaintiff seeks $1,000,000 damages against all defendants under the 1st, 2nd, 3rd, 4th, 7th, 8th and 9th causes of actions; $1,000,000 against the Rosenbaums, only, on the 12th, 13th and 14th causes of action, and $5,000 against all defendants on the 5th and 6th causes of action.

It is clear that plaintiff has repeated, in a variety of forms, substantially the same facts in an endeavor to plead a cognizable cause of action, basically founded upon his allegations that his former wife abandoned him and procured a unilateral divorce against him, deprived him of custody, visitation and consultation rights with respect to their son, and removed their son without his permission for permanent residence in Israel, and in so doing violated plaintiff's rights, breached the custody agreement, and violated court orders as to plaintiff's custody, visitation and other parental rights and that the Rosenbaums inspired, financed and induced, and...

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43 cases
  • Stone v. Wall, No. 92,499.
    • United States
    • United States State Supreme Court of Florida
    • 17 Junio 1999
    ...(1983) (father suing grandparents for aiding and abetting mother in interfering with custodial relationship); McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181 (Sup.Ct.1970) (father suing mother and maternal grandparents), aff'd, 37 A.D.2d 917, 324 N.Y.S.2d 876 (1971); McBride v. Magnu......
  • Leonhard v. U.S., 658
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 28 Agosto 1980
    ...aunt had been awarded temporary custody), cert. denied, 355 U.S. 857, 78 S.Ct. 84, 2 L.Ed.2d 63 (1957); McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181 (Sup.Ct.N.Y.Co.1970) (where child's mother has legal custody, father has no cause of action against mother's parents for aiding moth......
  • Steve H. v. Wendy S., B107640
    • United States
    • California Court of Appeals
    • 27 Agosto 1997
    ...his emotional distress claim from a prohibited action for alienation of a child's affection. (See McGrady v. Rosenbaum (1970) 62 Misc.2d 182, 189-190, 308 N.Y.S.2d 181, 188-190 [wife's efforts to terminate father-son relationship, in part through custody proceeding, did not permit husband t......
  • Kessel v. Leavitt, 23557.
    • United States
    • Supreme Court of West Virginia
    • 22 Julio 1998
    ...well-being, mechanically affirmed the trial court's dismissal of this claim without explanation. Additionally, in McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181 (1970),aff'd, 37 A.D.2d 917, 324 N.Y.S.2d 876 (1971), the court found that the father did not have a redressable claim for......
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