Gary G. v. Elena A.G.

• Decision Date: 14 June 2021
• Docket Number: Index No. REDACTED
• Parties: GARY G., Plaintiff, v. ELENA A.G., Defendant.
• Court: New York Supreme Court

72 Misc.3d 1201 (A)
146 N.Y.S.3d 921 (Table)

GARY G., Plaintiff,
v.
ELENA A.G., Defendant.

Index No. REDACTED

Supreme Court, Kings County, New York.

Decided on June 14, 2021

Donald Steven Campbell, Law Office of Richard A. Danzig, Attorney for the Plaintiff, 1 N Broadway Fl 12, White Plains, NY 10601

Yonatan S. Levoritz, Levoritz Law Group, Attorney for the Defendant, 140 Broadway Fl 46, New York, NY 10005

Deborah Marie Garibaldi, Deborah M. Garibaldi Attorney At Law, Attorney for the Child, 7519 Myrtle Ave, Glendale, NY 11385

Jeffrey S. Sunshine, J.

Introduction

Upon the foregoing papers in this prejudgment divorce action, defendant Elena A.-G. (defendant) moves by order to show cause, in motion (mot.) sequence (seq.) 4, for an order: (A) pursuant to Domestic Relations Law § 240, directing that her attorney may release the forensic report of the court-appointed neutral expert, Isaac Benzaquen, Ph.D., to defendant's expert, Peter J. Favaro, Ph.D., so that he may offer testimony and assist in the process of creating effective tools for the cross-examination of Dr. Benzaquen; (B) directing Dr. Benzaquen to release all documents, notes, recordings and other raw data collected in the process of the forensic evaluations for the purpose of allowing Dr. Favaro to review these materials; and (C) pursuant to CPLR 3101 (d) (1), granting defendant additional time to interpose her disclosure. In a separate motion brought by order to show cause, defendant moves for in limine relief in the form of an order excluding prejudicial evidence at the custody trial. In particular, defendant seeks an order excluding all transcripts from the prior hearing on exclusive use and occupancy of the former marital residence as well as all transcripts from the prior hearing on the issue of custody and visitation. In addition, defendant seeks an order excluding the March 20, 2018 and January 29, 2017 forensic reports of Dr. Benzaquen at trial or, alternatively, conditionally precluding the admission of Dr. Benzaquen's forensic reports at trial pending production of the notes and raw data relied upon. Finally, defendant seeks an order directing that a de novo custody trial is required under Judiciary Law § 21. ¹

Deborah Garibaldi, the court appointed attorney for the child, moves, in mot. seq. 5, for an order directing the entry of a money judgment in the sum of $11,909.63, representing $10,909.63 in unpaid legal fees and an additional $1,000 for legal fees in connection with the making of this motion. Plaintiff Gary G. (plaintiff) cross-moves, in mot. seq. 6, for an order taking judicial notice of the exhibits and testimony given in the prior exclusive use and occupancy hearing and the partial custody hearing which was scheduled to continue on April 14, 2021. Plaintiff further cross-moves for an order precluding defendant's proposed expert, Dr. Carlos Nunez, from testifying at the custody hearing.

Background Facts and Procedural History²

The parties were married on August 21, 2011, in a religious ceremony and one child (currently seven years old) was born to the marriage. On September 24, 2015, plaintiff commenced the instant divorce action in Queens County Supreme Court by filing a summons and complaint under Queens County Index No. 11641/15. Among other things, the complaint asserted a cause of action seeking a judgment of divorce pursuant to Domestic Relations Law § 170 (7) based upon the irretrievable breakdown of the marriage for a period of at least six months. On December 3, 2015, defendant interposed an answer which contained a single counterclaim seeking a judgment of divorce pursuant to Domestic Relations Law § 170 (7) based upon the irretrievable breakdown of the marriage for a period of at least six months. ³ On February 17, 2016, Deborah Garibaldi, Esq., was appointed to represent the interests of the parties' child in this matter. On January 29, 2017, Dr. Isaac Benzaquen, a court-appointed forensic evaluator, issued a report after performing a forensic custody evaluation of the parties' child. On March 20, 2018, Dr. Benzaquen issued an updated report after performing a second evaluation of the parties' child.

On March 4, 2019, after holding a hearing on the matter, Queens County Supreme Court Justice Jodi Orlow issued a decision and order which granted plaintiff's motion for an order awarding him temporary exclusive use and occupancy of the parties' marital home located at 7031 108th Street Apartment 6A, Forest Hills, NY This order was subsequently affirmed by the Appellate Division, Second Department ( see 185 AD3d 1012 [2020] ).

On April 17, 2017, June 22, 2018, June 25, 2018, and February 21, 2019, a hearing on the issue of custody was held before Justice Orlow. However, before the custody hearing was completed, Justice Orlow recused herself from the case. On October 17, 2019, Deputy Chief Administrative Judge for the Courts inside the City of New York George J. Silver issued Administrative Order No. 318 transferring this case from Queens County Supreme Court to this Justice in his capacity as the Statewide Coordinating Judge for Matrimonial Cases. Thereafter, the case was assigned Kings County Index No. 55468/19.

On or about February 18, 2020, defendant moved, by order to show cause, for an order seeking various relief including leave to file an amended complaint with counterclaims, directing that an updated forensic report be conducted, permitting Defendant to borrow money from her 401 K savings plan and leave to renew Justice Orlow's March 4, 2019 order. On January 4, 2021, this court issued a 19 page decision and order which largely denied defendant's motion. This order further directed that the trial on custody would commence on April 14, 2021.

On March 8, 2021 and April 1, 2021, the court heard oral argument on the instant motions. Thereafter, the court reserved decision on the motions and postponed the trial date. The Court directed (in order to prevent any further delay), that no other motions could be made without Court permission except for the request for an order of protection or any application that relates to urgent safety issues. The court's rulings on the motions now follow.

Custody Trial

The court first addresses the parties' respective motions regarding the custody trial. In particular, defendant seeks an order directing that a de novo custody trial be conducted before this court, while plaintiff seeks to have the court take judicial notice of the exhibits and testimony given in connection with the custody hearing before Justice Orlow, and for the instant court to continue the hearing. In support of this branch of her motion, defendant maintains that, under Judiciary Law § 21 as well as relevant case law, this court may not continue the custody hearing began by Justice Orlow. Instead, defendant argues that a de novo custody hearing must be commenced by this court. In opposition to this branch of defendant's motion, and in support of his own motion for an order directing the custody hearing be continued before this court, plaintiff argues that Judiciary Law § 21 only precludes a Judge from deciding motions which were argued before another Judge and does not apply to hearings. In addition, plaintiff contends that the Appellate Division, Second Department specifically ruled in the case of McAvoy v Hannigan (107 AD3d 960 [2013], lv denied 22 NY3d 854 [2013] ) that Judiciary Law § 21 does not prevent a Supreme Court Justice from continuing a trial previously conducted before a different Justice. Finally, plaintiff maintains that his position is further supported by the Court of Appeals' ruling in People v Thompson (90 NY2d 615 [1997] ).

Judiciary Law § 21 provides that, except in appellate courts, a Judge "shall not decide or take part in the decision of a question which was argued orally in the court, when he was not present and sitting therein as a judge." In interpreting this provision, the Court of Appeals and Appellate Divisions of the First and Second Department have ruled that the statute does not preclude a successor Judge from determining a motion argued before another Judge so long as purely legal questions are involved ( People v Hampton , 85 AD3d 1055, 1056 [2011], affd 21 NY3d 277 [2013] ; Plunkett v Emergency Med. Serv. of NY City , 234 AD2d 162, 163 [1996] ). Similarly, Judiciary Law § 21 "does not prevent the substitution of a Judge in a jury trial since the ultimate determination of guilt or innocence belongs to the jury and not the Trial Judge" ( People v Thompson , 90 NY2d 615, 621 [1997] ). However, it necessary follows from these rulings that when a Judge acts as a fact finder and is required to weigh the credibility of witnesses, Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge ( People v Massey , 191 AD3d 1488 [2021] ; People v Banks , 152 AD3d 816, 818 [2017] ; Matter of Connelly-Logal v West , 272, AD2d 920 [2000]; Matter of Fellows v Fellows , 25 AD2d 865 [1966] ). In such cases, a new hearing or trial before the successor Judge is required.

Here, the issues before Justice Orlow during the custody hearing that she presided over were not purely legal in nature. To the contrary, Justice Orlow was acting as a fact finder and was required to...