Y.B. v. G.B.

• Decision Date: 16 September 2022
• Docket Number: Index No. 50332/2019
• Parties: Y.B., Plaintiff v. G.B., Defendant
• Court: New York Supreme Court

2022 NY Slip Op 50892(U)

Y.B., Plaintiff
v.
G.B., Defendant

Index No. 50332/2019

Supreme Court, Richmond County

September 16, 2022

Unpublished Opinion

Plaintiff is represented by Michael Coscia Esq. of Abrams Fensterman LLP

Defendant is represented by William Beslow Esq.

Two of the subject children were represented by Ian Berliner Esq.

One subject child was represented by Anthony Morisano Esq.,

Catherine M. DiDomenico, J.

Procedural History

By Summons with Notice filed April 12, 2019, Plaintiff Y. B (hereinafter "Wife") commenced this action for divorce against Defendant G. B (hereinafter "Husband"). A Verified Complaint was filed by Wife on or about May 30, 2019. It appears from the official court record that Husband never filed an Answer to Wife's Complaint. On or about May 15, 2019, the parties agreed by Preliminary Conference Order that Wife would be granted a divorce on the grounds that the marriage had broken down irretrievably for a period of six months pursuant to DRL §170(7). The parties were married on August 15, 2009 in a religious ceremony. There are three children of this marriage: M. B (d.o.b. **/**/2011); N. B (d.o.b. **/**/13); and C. B (d.o.b. **/**/18). Wife is currently 38 years old (d.o.b. **/**/84); Husband is currently 36 years old (d.o.b. **/**/86).

The issues of custody, visitation, child support, equitable distribution, maintenance, and counsel fees were tried before this Court over the course of eleven days between September 23, 2021, and January 13, 2022. Throughout this case, Husband was represented by William Beslow Esq. Wife had six attorneys represent her at various stages of this divorce proceeding. Before commencement, Wife retained Yonatan Levoritz Esq., but he was discharged a few days later as Wife discovered that he had "met" with Husband. At the time the Request for Judicial Intervention ("RJI") was filed in April 2019, Wife was represented by Adam Edelstein Esq. of Edelstein, Faegenburg and Brown LLP. A Consent to Change Attorney from the Edelstein firm to the firm of Felder, Felder and Nottes was filed on April 23. 2019. Michael N. Klar Esq. of the Felder firm moved to withdraw as counsel in October of 2019 (Mot. Seq. No. 005) which was granted by Order dated October 8, 2019. On October 25, 2019, a Notice of Appearance was filed by Jeffrey Kaplan, Esq. of J. Kaplan, and Associates, PLLC. On June 4, 2020, Mr. Kaplan filed an Order to Show Cause to be Relieved as Counsel (Mot. Seq. No. 007) which was granted by Order dated June 24, 2020. On June 26, 2020, Mary Grace Condello, Esq. filed a Notice of Appearance on behalf of Wife. On or about December 10, 2020, Ms. Condello filed an Order to Show Cause to be Relieved as Counsel (Mot. Seq. No. 012) which was granted by Order dated February 22, 2021. On March 9, 2021, a Notice of Appearance was filed by Michael Coscia, Esq. of Abrams Fensterman, LLP. Mr. Coscia tried this case on behalf of Wife and continues as her counsel to date. However, while this matter was sub judice, Mr. Coscia also filed a Motion to be Relieved as Counsel (Mot. Seq. No. 019). Mr. Coscia's motion remains undecided as of the writing of this Decision and will be addressed herein. The multiple applications by Wife's attorneys to withdraw as counsel, and their reasons for asking to be relieved, are discussed later in this Decision. Suffice to say here, the numerous changes in counsel unduly delayed these proceedings and caused unnecessary legal fees amounting to thousands of dollars.

On or about October 23, 2019, Thomas Conigatti, Esq, was appointed to represent all three subject children. After the untimely passing of Mr. Conigatti on July 9, 2019, Mr. Ian Berliner was appointed to represent the three subject children. In May 2021, when it was alleged that the two oldest children (M. B and N. B) no longer wanted to see their father (which position was in conflict to that of the youngest child C. B), Mr. Berliner sought the appointment of a second attorney to represent C. B. As C. B was only three years old at that time, by Order dated May 13, 2021, Rita Kaufman, Esq. was appointed for the purpose of substituting judgment for this young child. When Ms. Kaufman was unable to appear for the stipulated trial dates, she was substituted by Anthony Morisano, Esq. on September 14, 2021. Throughout this litigation, the attorneys for these children were paid privately by the parties subject to reallocation as addressed later herein.

On joint application, and by Order dated July 9, 2019, Dr. William Kaplan was appointed to conduct a forensic examination. Among other issues, Dr. Kaplan was ordered to address the issues of physical custody, parenting time, domestic violence, mental illness, and interference with parental rights. Dr. Kaplan interviewed the parties, the children, and numerous collateral sources he deemed appropriate in accordance with his professional practice and standards. Husband was ordered to pay 100% of the cost of Dr. Kaplan's services subject to reallocation. Dr. Kaplan issued his report bearing a dictation date of March 28, 2020.

As this case continued, the relationship between Husband and M. B and N. B deteriorated significantly, ultimately resulting in Husband voluntarily suspending his own parenting time in May 2021. He did this to spare these children any further trauma caused by being "forced" to visit with him. At the urging of Husband and with the support of the attorneys for the subject children, this Court directed Dr. Kaplan to supplement his report by Order dated May 13, 2021. Dr. Kaplan was directed to re-consider the question of whether there were grounds to conclude that the children were being alienated from their father by Wife. In a supplemental report dated October 8, 2021, Dr. Kaplan found that Wife had engaged in acts which caused M. B and N. B to become alienated from their father to a degree rarely seen before in his experience. Dr. Kaplan further predicted that, if an intervention was not mandated quickly, C. B would align with her sisters and similarly refuse to visit with her father. As discussed below, M. B and N. B remain unjustifiably rigid and steadfastly unyielding in their contempt for their father and their refusal to have anything to do with him. Their position flies in the face of the trial record which reveals overwhelmingly that Husband was a loving affectionate parent who never did anything wrong to these children.

At trial, Wife testified on her own behalf and called the following witnesses: (1) Husband; (2) Dr. William Kaplan and (3) Jeffrey Gibraltar (forensic business evaluator). Wife also placed voluminous documents into evidence (Pl. Ex. 1 to 86). Husband testified on his own behalf. Husband also placed voluminous documents into evidence (Def. Ex. A to CT). Judicial Notice was taken of several Orders (Ct. Ex. 1-20). In total, the trial record consists of over two thousand pages of testimony and over ten thousand pages of documentary evidence. Post-trial written summations were submitted by all counsel. An Inquest on the issue of grounds was held on the first day of trial. Wife was granted a Judgment of Divorce on the grounds that the marriage had broken down irretrievably pursuant to DRL §170(7). The Judgment was held in abeyance until the remaining issues in this divorce were adjudicated as required by this statute.

The fees related to court-appointed lawyers and neutral experts were paid by the parties, often from funds held in escrow, pursuant to orders issued throughout the course of this litigation. Both parties now seek reallocation of those payments. The first escrow account ($400,000) contained funds that Wife was ordered to surrender after she liquidated marital bank accounts immediately prior to the commencement of this divorce. The second escrow account (approximately $896,487) represented the sale proceeds from jointly owned marital property located at *** West Fingerboard Road ("West Fingerboard Road"). After trial, each attorney updated his respective Statement of Proposed Disposition regarding these accounts. As of June 2022, approximately $440,000 ^[1] remained in these accounts after the numerous distributions discussed in detail below.

The Parties' Positions

In her written Summation, Wife seeks an Order of shared custody for all three children with residential custody and final decision-making rights entrusted to her and visitation awarded to Husband. However, she knows this is not feasible as a practical matter because M. B and N. B refuse to have any contact with their father. Wife argues that she has always been the primary caretaker of the children as Husband typically worked long hours managing their jointly owned business. She claims that Husband never really had a close relationship with the children as he was always primarily concerned with his business. She denies that she engaged in any acts of physical violence towards Husband and vehemently denies that she has alienated M. B and N. B from him. She claims Husband is to blame for their strained relationship. Wife claims that her efforts to convince M. B and N. B to visit with their father have been unsuccessful. She suggests no solution to the impasse between the two older children and their father, nor any thoughts as to how she would effectuate her offer of shared custody. Finally, Wife denies interfering or sabotaging Husband's visits with the youngest child C. B.

Regarding parental access, Wife testified Husband should see all three children on alternate weekends and at least once during the week. She does not explain how this schedule could possibly be implemented as a practical matter. Husband does not visit with M. B and N. B and has not even seen them for at least 15 months. Husband finally gave up trying to force them to see him after Wife filed an unsuccessful motion to suspend his visits. He eagerly awaits implementation of court ordered therapy so he...