Anonymous 2017-1 v. Anonymous 2017-2

• Court: New York Supreme Court
• Writing for the Court: Joseph H. Lorintz, J.
• Citation: Anonymous 2017-1 v. Anonymous 2017-2, 62 Misc.3d 289, 87 N.Y.S.3d 437 (N.Y. Sup. Ct. 2018)
• Decision Date: 23 October 2018
• Docket Number: XXXXXX/XX
• Parties: ANONYMOUS 2017-1, Plaintiff, v. ANONYMOUS 2017-2, Defendant.

62 Misc.3d 289

87 N.Y.S.3d 437

ANONYMOUS 2017-1, Plaintiff,

v.ANONYMOUS 2017-2, Defendant.

XXXXXX/XX

Supreme Court, Nassau County, New York.

Decided October 23, 2018

Gassman Baiamonte Gruner, P.C., Attorneys for Plaintiff, 666 Old Country Road, Suite 801, Garden City, NY 11530, Ph: (516) 228-9181, Fax: (516) 745-6712

Law Offices of Thomas F. Liotti, LLC, Attorney for Defendant, 600 Old Country Road, Suite 530, Garden City, NY 11530, Ph: (516) 794-4700, Fax: (516) 794-2816

Mark A. Green, P.C., Attorney for the Children, 990 Westbury Road, Suite 202, Westbury, NY 11590, Ph: (516) 345-8080, Fax: (516) 345-1616

Joseph H. Lorintz, J.

Hearing Issue

The sole issue of the disqualification of the Defendant's counsel, Thomas F. Liotti, Esq., was the subject of a hearing held before this Court over the course of six (6) days, August 3, 2018, August 13, 2018, August 15, 2018, September 5, 2018, September 6, 2018 and September 7, 2018. Pursuant to this Court's Decision and Order dated June 1, 2018, the hearing was to determine whether the Defendant's counsel should be disqualified. In a Decision and Order of this Court dated June 1, 2018, the motion brought by the Plaintiff seeking the disqualification of the Defendant's counsel was referred to a hearing.

At the hearing, the Plaintiff was represented by counsel. The Defendant was represented by counsel. Additionally, the parties' children were represented by an Attorney for the Children (hereinafter "the AFC"). The Defendant's counsel, Thomas A. Liotti, Esq., the Defendant, the Plaintiff and SG were the witnesses at the hearing, which was followed by an in camera interview with the two (2) children on October 3, 2018, in the presence of the AFC.

Background

The Plaintiff alleged that on April 2, 2018, in the late afternoon, the Defendant's attorney, Thomas F. Liotti, Esq. ("Mr. Liotti"), drove to the Defendant's home and chauffeured, in his vehicle, the Defendant, the parties' two children and their nanny to the home of SG, another client of Mr. Liotti's, in Plainview. The ride lasted approximately 40 minutes. Mr. Liotti did not notify the AFC, Mark A. Green, Esq., that he would be transporting the children.

Earlier that day, on April 2, 2018, Mr. Green brought an Emergency Order to Show Cause seeking to enjoin the Defendant and her counsel from speaking about their ongoing divorce and custody dispute in public. The Emergency Order to Show Cause was heard on April 2, 2018 by Hon. Hope Schwartz Zimmerman as this Court was not available that day. The Plaintiff's counsel, Mr. Liotti, and Mr. Green all appeared in Court on April 2, 2018. Justice Zimmerman did not sign the Order to Show Cause and referred the matter to this Court for April 3, 2018 at 2:00 p.m.

On April 3, 2018, the Plaintiff's counsel, the Defendant and her counsel and the AFC all appeared before this Court with reference to the emergency Order to Show Cause brought by Mr. Green. No mention at that time was made by Mr. Liotti to Mr. Green that he had transported the children in his vehicle the day prior.

The Plaintiff submitted the Order to Show Cause seeking to disqualify Mr. Liotti on April 10, 2018. Upon the presentment of the Order to Show Cause, the Plaintiff's counsel, the Defendant and her counsel and the AFC appeared before this Court. At that time, counsel for the Plaintiff argued that even if Mr. Liotti did not discuss the case with the children, in being in the presence of the parties' children in his car, Mr. Liotti was "inducing trust in him as mommy's lawyer". (Tr. 04/10/18 at p. 5, ln. 10) The AFC commented that he was "shocked" (Tr. 04/10/18 at p. 8, ln. 18) that Mr. Liotti would see his clients outside of his presence. He argued that his clients were "tainted" by having been exposed to one of the party's attorneys.

In response, at the presentment of the Order to Show Cause, Mr. Liotti stated that on April 2, 2018, there was an emergency situation, whereby a private investigator was following his client. He also indicated that the police were at the scene. He stated that he "never spoke to the children about this case or anything else". (Tr. 04/10/18 at p. 17, ln. 20) He stated that he knew the children from the Atlantic Beach Club and that when he has visited his client at her house, the children were "around" but he didn't speak to them about the case. He was there to look at the scene.

Mr. Liotti stated that on April 2, 2018, the children were very upset about the private investigator following the Defendant. He also stated that his client learned that she had a suspended license. Because of the fear associated with a possible suspended license, the private investigator's actions, the police presence, and her desire to go to SG's home in Plainview, Mr. Liotti decided that the best course would be to take the children from the home in Lido Beach to Ms. G's home in Plainview. Mr. Liotti parked his car on another street and had the Defendant and children meet him there. Mr. Liotti stated that the children were accompanied by a nanny to witness that he never discussed anything about the case with them. He also offered for the children to be interviewed in a modified "Lincoln Hearing" (Tr. 04/10/18 at p. 21, ln. 14) to verify that he never spoke to them about the case.

Mr. Liotti also stated that the private investigator who was following them "came up right on our tail and, in fact, endangered us" (Tr. 04/10/18 at p. 22, ln. 2). He stated that he tried to avoid him but the private investigator was "menacing" (Tr. 04/10/18 at p. 22, ln. 9). Finally, Mr. Liotti stated that he didn't even know if the children knew that he was the Defendant's lawyer. (Tr. 04/10/18 at p. 32, ln. 15)

Motion Papers

In his Affirmation in Opposition to the Plaintiff's Order to Show Cause to disqualify him, dated April 25, 2018, Mr. Liotti stated that his client, the Defendant, in the afternoon of April 2, 2018 called him while he was in his office, complaining about being followed and staked out by private investigators. Mr. Liotti stated that the children were "petrified" and he was very concerned for his client and the children as he believed there could be a set up for the Defendant to be arrested. He believed it was his responsibility to go to his client's home to insure her rights were protected. His plan was to park a short distance away from the Defendant's home and thwart the plan to have her arrested in front of her children. He stated that his client's need for his "legal protection" negated the use of a taxi or other forms of transportation. He states that he had no conversation with the children at any time and that "At no time did defendant say anything about me, the case or disparage plaintiff". (Liotti Affirmation, 4/25/18 at ¶ 20)

In his Affirmation, Mr. Liotti states that "I will not permit or stand by while they try to frame defendant, an exemplary mother and parent. Plaintiff may think that he is fighting for his finances but defendant has a higher calling. She fights only for her children. She will not and I will not allow her children to be used as pawns by plaintiff or anyone else". (Id. at ¶ 30) He further states "The AFC and Mr. Gassman may be accustomed to traditional, legal warfare but here plaintiff's unconventional tactics require an unconventional response, to wit: me". (Id. at ¶ 31) Mr. Liotti states in his Affirmation that "In retrospect, I believe that I acted appropriately and would not change any of my actions". (Id. at ¶ 33) He also stated that "If this Court were to seriously consider this motion for disqualification it would divest defendant of the advocacy that only I can provide." (Id. at ¶ 38)

Mr. Liotti attempts to distinguish the circumstances in this matter with a prior matter in which he was disqualified for taking the statement of a child in a Family Court proceeding who was represented by an attorney. In this matter, Mr. Liotti states he did not take any statements from either child and did not even speak to them.

In Mr. Liotti's Sur-Reply Affirmation dated May 18, 2018, during the April 2, 2018 encounter, he claims to have had no physical contact with the children and that they never spoke to him and he never spoke to them. (Liotti Sur-Reply Affirmation, 05/18/18 at ¶ 5) He further states in his Sur-Reply Affirmation that "Except for pure speculation that because the children were in my car for approximately forty minutes nothing has been offered to show that I had any verbal or even physical contact with the children. On the contrary here are affidavits from my client, two other witnesses and my own affirmation showing that I never spoke to the children and they never spoke to me on April 2, 2018 or at any other time". (Id. at ¶ 14)

In his Amended Sur-Reply Affirmation, Mr. Liotti once again states that he "had no physical contact with them: they never spoke to me and I never spoke to them". (Liotti Affirmation, 05/21/18 at ¶ 5)

In her Affidavit sworn to on April 26, 2018, submitted in opposition to the Plaintiff's application, the Defendant indicated that on April 2, 2018, due to their fear she was in danger of being arrested, her attorney "offered to transport me to a friend's house or a hotel". She stated that when Mr. Liotti arrived at her house the children were "pretty shaken up" about the private investigator who was in front of her house. She described the children going to "Tom's" car and them driving along Lido Boulevard while the private investigator followed them "aggressively" and photographed the children. She also described the children pointing at the private investigator's car, ducking down and "commenting about it in a nervous manner". The Defendant stated that "At no point in the car ride did Tom ever speak to the children about anything, much less about any case". She also indicated that the children "were focused on the private investigator and his constant aggressive pursuit of us".

Although the Defendant alleges in her Affidavit that neither she nor her attorney spoke...