Dayan v. Dayan
| Decision Date | 20 March 2019 |
| Docket Number | 54225/2015 |
| Citation | 114 N.Y.S.3d 578 (Table),63 Misc.3d 1212 (A) |
| Parties | Jennifer DAYAN, Plaintiff, v. Maurice S. DAYAN, Defendant. |
| Court | New York Supreme Court |
Maria Coffinas, Esq., Attorneys for Plaintiff, 186 Joralemon Street, Brooklyn, NY 11201
Matthew S. Siedner, Esq., Attorney for Defendant, 100 Quentin Roosevelt Boulevard, Suite 501, Garden City, New York 11530
This Court is called upon to determine if the non payment by the Defendant of a pendente lite counsel fee award of $ 100,000 rises to the level of contempt. This determination must be made in the context of a Defendant husband having the benefit of counsel paid with funds of at least $ 225,000.00 provided by himself and his family. Plaintiff's former counsel has asserted a charging and retaining lien on her file, conceding that the payment of $ 100,000 would secure the release of the file.
The Court issued a Decision and Order dated March 6, 2017 wherein Defendant was directed to make a payment of $ 100,000.00 to Plaintiff's prior counsel pendente lite, within forty-five days of service of notice of entry. Said decision was not appealed and is law of the case. "The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" ( Martin v. City of Cohoes , 37 NY2d 162, 165, 332 N.E.2d 867, 371 N.Y.S.2d 687 [Court of Appeals 1975] ; Matter of Chung Li , 165 AD3d 1105, 87 N.Y.S.3d 316 [2d Dept. 2018]. "The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case" ( RPG Consulting, Inc. v. Zormati , 82 AD3d 739, 740, 917 N.Y.S.2d 897 [2d Dept. 2011] ; see Ramanathan v. Aharon , 109 AD3d 529, 530, 970 N.Y.S.2d 574 [2d Dept. 2013] ; Erickson v. Cross Ready Mix, Inc. , 98 AD3d 717, 717, 950 N.Y.S.2d 175 [2d Dept. 2012] ; Matter of Chung Li , 165 AD3d 1105, 87 N.Y.S.3d 316 [2d Dept. 2018] ). It bars reconsideration of issues which were raised and determined against a party or which could have been raised on a prior appeal (see Czernicki v. Lawniczak , 103 AD3d 769, 770, 962 N.Y.S.2d 166 [2d Dept. 2013] ; Moran Enters., Inc. v. Hurst , 96 AD3d 914, 916, 947 N.Y.S.2d 538 [2d Dept. 2012] ; Stone v. Stone , 39 AD3d 534, 535, 831 N.Y.S.2d 728[2d Dept. 2007] ; Matter of Chung Li , 165 AD3d 1105, 87 N.Y.S.3d 316 [2d Dept. 2018].) The Court also issued a subsequent Decision and Order dated November 30, 2017 among other things, denying Defendant's re-argument of the $ 100,000 counsel fee awarded to the Plaintiff.
By Order to Show Cause dated January 17, 2018, Plaintiff sought an adjudication of civil contempt against the Defendant based on the Defendant's failure to comply with and obey the March 6, 2017 Decision and Order the Court issued directing the Defendant to make a payment of $ 100,000.00 to Plaintiff's prior counsel pendente lite within forty five days of service of notice of entry. An evidentiary contempt hearing was held on November 14, 2018. This application until then was held in abeyance due to the fact that Defendant's second counsel was relieved due to a conflict of interest and he retained new counsel. Plaintiff's former counsel was also relieved and asserted a retaining lien on her file. (See: Dayan v. Dayan , 58 Misc 3d 957, 66 N.Y.S.3d 850, 2017 NY)
The Plaintiff testified that the Defendant has not paid, Plaintiff's prior counsel, the counsel fees of $ 100,000 as ordered by the Court on March 6, 2017 and because of the failure to pay, former counsel will not release the Plaintiff's file that contains items and documents needed to proceed for the financial trial. Extensive litigation has ensued on the issue and an evidentiary hearing is presently being held on the lien issues.
At the hearing the following questions and answers were elicited on cross:
There was further testimony regarding the missing items.:
In regards to the minutes of a Delaware proceeding:
The Plaintiff testified that she was unable to pay her formal counsel since the last court date but did pay her present counsel with money she obtained from selling her engagement ring and wedding band.
The Plaintiff testified that she has been prejudiced because the "stamp" and documents are important to her proving an ownership interest in a family held business controlled by the Defendant's family. The Plaintiff testified that she is seeking to incarcerate the Defendant because the items are important and she is sure he can pay the money owed.1
The Defendant testified that he did receive the order from this Court from March 6, 2017 and has not made the required payment.
The Defendant testified that he had ben residing in a private home with his family in Oakhurst, New Jersey for about three years that he once owned. The Defendant also testified that this is a 5 bedroom home and he is not currently paying any rent or utilities, and that there is an additional bedroom for a housekeeper. The Defendant further testified that there are "one or two" housekeepers who work in the house, another person who works outside of the home and a driver that drives the children back and forth during visitation.
Defendant later testified:
The Defendant testified that his first attorney was paid between $ 200,000.00 and $ 250,000.000 by the Defendant himself and his brother, the second attorney was paid an unknown amount by the Defendant's brother or father and that his third and present attorney was paid $ 25,000.00 by his brother.
As to his second attorney the following colloquy took place:
Further testimony regarding Defendants third attorney also took place:
The Defendant testified that he and the children recently traveled to Israel, all expenses paid by the Defendant's sister and her husband, and stayed in two different hotels, one being The King David, and had two separate rooms in each hotel for the Defendant's immediate family.
The Defendant testified that he makes about $ 25,000.00 to $ 40,000.00 and works "all the time". The Defendant testified that
The Defendant introduced into evidence his 2015 and 2016 income tax return as Defendant's Exhibit B and his 2017 income tax return as Defendant's Exhibit C which reported an income of minus $ 260,908.00 for 2015, minus $ 298,450.00 for 2016 and minus $ 259,350.00 in 2017. The Defendant testified that there was a negative adjusted gross income " because we had a net loss carry forward from years earlier incurred from losses in the business."
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