B.N. v. M.N.
| Decision Date | 19 August 2022 |
| Docket Number | Index No. 123/2021 |
| Parties | B.N., Plaintiff, v. M.N., Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Attorney for Plaintiff: Keil & Siegel, LLP Co-Counsel Mejias, Milgrim, Alvarado & Lindo, P.C.
Attorney for Defendant: Schlissel Ostrow Karabatos, PLLC.
Papers Read on these Motions:
Plaintiff's Notice of Motion (NYSCEF Document Nos.: 268-296) x
Defendant's Notice of Cross-Motion (NYSCEF Document Nos.: 298-308) x
Plaintiff's Reply (NYSCEF Documents Nos.: 309-315) x
Defendant's Reply (NYSCEF Document Nos.: 316-322) x
The Plaintiff moves by Notice of Motion dated May 16, 2022 (Motion Sequence No.: 010) seeking an Order: (a) Pursuant to CPLR § 5519(c), vacating the automatic stay of this Court's March 21, 2022 Order obtained by the Defendant's posting of an undertaking to secure his obligation to pay interim counsel fees to the Plaintiff; or in the alternative if this branch of relief is not granted (b) Pursuant to CPLR § 2201, staying the within proceedings until such time as the Appellate Division renders a decision upon the Defendant's appeal of this Court's March 21, 2022 Order, and granting such stay without effect upon the duration of a final spousal maintenance award; and (c) Pursuant to DRL § 237 awarding Plaintiff interim appellate counsel fees and expenses payable by the Defendant in the amount of $20,000.00 in connection with the services yet to be rendered to defend against Defendant's appeal of this Court's March 21, 2022 Order; and (d) Pursuant to DRL § 237, awarding Plaintiff counsel fees payable by the Defendant in the amount of $7,500.00, in connection with this instant application; and (e) For such other and further relief as this Court may deem proper and equitable.
The Defendant cross-moves by Notice of Cross-Motion dated June 3, 2022 (Motion Sequence No.: 011) seeking an Order: (a) Pursuant to CPLR § 2221, granting Defendant leave to reargue the Order of this Court dated March 21, 2022; (b) Upon such reargument, modifying so much of the Order of this Court dated March 21, 2022 as granted Plaintiff legal fees in the amount of $75,000 and reducing the legal fee award to an amount that takes into consideration the facts and circumstances of this case; (c) Granting Defendant such other and further relief as this Court may deem just and proper.
The parties were married on XXX, 2010. The parties have three (3) children, XXXX (born XXXX), XXXX (born XXXX) and XXXX (born XXXX). The Plaintiff is employed as a Real Estate Sales Person at XXXX, and the Defendant is employed as an Attorney with the firm of XXXX, LLP.
The Plaintiff commenced the within action for divorce and ancillary relief by the filing of a Summons with Notice with the Nassau County Clerk's Office on June 29, 2021. The Plaintiff appeared by and through counsel, Keil & Siegel, LLP. The Plaintiff thereafter retained co-counsel, Mejias, Milgrim, Alvarado & Lindo, P.C. The Defendant appeared by and through counsel, Schlissel Ostrow Karabatos, PLLC.
This Court, by Decision and Order dated March 21, 2022 (Hon. Edmund M. Dane, J.S.C.), inter alia, granted so much of the Plaintiff's application seeking interim counsel fees pursuant to DRL § 237 insofar as awarding the Plaintiff the sum of $75,000.00 as and for interim counsel fees, payable within forty-five (45) days of service of that Decision and Order with Notice of Entry, without prejudice to further applications for additional sums as is necessary at the time of trial or sooner.
Subsequent to the March 21, 2022 Order, the Defendant posted an Undertaking on Appeal (NYSCEF Document No.: 275) (hereinafter referred to as the "Bond"). Said Bond was in the sum of $75,000.00, which was the amount of the counsel fee award as set forth in the March 21, 2022 Order, as heretofore noted.
Plaintiff's Contentions:
According to the Plaintiff, the Defendant has used his financial superiority and controlled her access to funds in an attempt to gain leverage, and he has "overlitigated" this case in an attempt to drive up legal fees, that the Plaintiff claims she cannot afford. The Plaintiff contends that the parties have a huge disparity in income, and that "within minutes" of (the issuance of) the March 21, 2020 Order, the Defendant sent her a message on Our Family Wizard (hereinafter referred to as "OFW") as follows:
The Plaintiff next contends that the Defendant earns substantial income in excess of $1 million per year, and that she has been a stay-at-home mother for more than a decade. The Plaintiff contends that the Defendant has filed needless motions, turning mundane issues into complicated "battles", which results in constant and costly attorney communication and court intervention. The Plaintiff further argues that the Defendant has not paid certain expenses, often finding "loopholes" to avoid paying, and further outlines the Defendant's alleged conduct vis-a-via issues surrounding the children and therapy. The Plaintiff then appends various and additional messages that were sent by the Defendant, including but not limited to, "... and and "...Karma is gonna [sic] come Around [sic] and smack bxxxx so hard..." and "...I wonder what Karma has in store next for the Sxxx's..."
The Plaintiff next argues that without the legal fees, she will be unable to litigate this case, and that the case will progress towards trial, including discovery, depositions, all of which she cannot afford. The Plaintiff submits that her request to vacate the stay is necessary to ensure that she can continue litigating this case. The Plaintiff further argues that what she seeks from the Court is not prejudicial insofar as, if the Appellate Division, in effect, reverses or modifies any portion of this Court's March 21, 2020 Order, the Defendant can recoup the amount of the legal fee award in equitable distribution. The Plaintiff next argues that the parties have more than $3 million in assets, comprised of luxury vehicles, brokerage accounts, money market accounts and retirement accounts, the "marital residence", and a boat, from which the Defendant can be made "whole" in the event he is successful in the Appellate Division. The Plaintiff requests of this Court-to the extent that it does not vacate the Bond, to stay this action pending appeal.
The Plaintiff argues that she is in need of legal fees of $20,000.00 relative to the appeal because she cannot afford not to defend herself, even though she cannot afford to defend against it. The Plaintiff argues that the Defendant could have filed a motion seeking reargument, or he could have filed an application in the Appellate Division seeking a stay, but that he did not make the latter application, particularly because he would have had to shown a likelihood of success on the merits. The Plaintiff contends that the choice not to file an application for a stay, and instead the choice to Bond the appeal, was a litigation tactic.
Defendant's Contentions:
The Defendant contends that the Plaintiff has no incentive to settle inasmuch as she has exclusive use and occupancy of the former marital residence because of a stay-away order of protection (which the Defendant argues were based upon false criminal charges thrust upon him on the eve of father's day), that she receives a (voluntary) support package that includes the payment of all of the Plaintiff's and the children's expenses plus direct support, [1] and that she now has an order of this Court which granted her 100% of the Plaintiff's ten-outstanding legal fees.
The Defendant next argues that once this Court directed a forensic evaluator [2] -as requested by the Plaintiff - and once the fees for that forensic were directed to be paid from marital funds, the Plaintiff "changed" her position, refused to call the forensic within the five (5) day time limitation as set forth therein, and refused to authorize the release of the funds needed for payment of the forensic, forcing the Defendant to pay it on his credit card, instead of from the joint brokerage account, where that expense was supposed to come from. The Defendant contends that the Plaintiff's belief is that the rules do not apply to her, and that the Defendant is not the "horrible abusive man" depicted by the Plaintiff inasmuch as the parties, by agreement, share joint custody with the Defendant having a liberal parenting schedule. The Defendant argues that he believes that, in sum and substance, the threat of depletion of marital assets brought the Plaintiff to the negotiating table, and now, given a significant legal fee award, the Plaintiff simply seeks to dig her heels in, which will result in fueling her fire, and creating a litigation standstill.
In support of the aforesaid, the Defendant argues that on March 4, 2022, he sent a settlement offer (after settling custody) in an effort to resolve the remaining extant financial issues and, in response, the Plaintiff stated, in sum and substance that discovery needed to be completed before the Plaintiff would respond to that proposal. The Defendant argues that he...
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