Gottlieb v. Gottlieb
| Decision Date | 24 March 2016 |
| Citation | 28 N.Y.S.3d 37,137 A.D.3d 614 |
| Parties | Lauren Appel GOTTLIEB, Plaintiff–Respondent, v. Michael GOTTLIEB, Defendant–Appellant, Heshy Gottlieb, et al., Nonparty Appellants. |
| Court | New York Supreme Court — Appellate Division |
Mallow, Konstam, Mazur, Bocketti & Nisonoff, P.C., New York (Madeleine Nisonoff of counsel), for appellants.
Bender Rosenthal & Richter LLP, New York (Karen B. Rosenthal of counsel), for respondent.
FRIEDMAN, J.P., SAXE, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Order, Supreme Court, New York County (Ellen Gesmer, J.), entered December 23, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiff wife's motion for sanctions against defendant husband and granted plaintiff's motion to hold defendant's parents in contempt of court, modified, on the law and the facts, to deny plaintiff's motion insofar as she sought to sanction defendant for his delay in paying his share of the neutral forensic evaluator's fees, to vacate the sanctions imposed on defendant for the delay ($6,847.50 and $79,530), and to vacate the fines imposed on defendant's parents for their contempt of court in the amounts of $156,704.94 and $28,135.35, representing the legal fees plaintiff incurred in conducting the visitation trial and preparing an addendum to the posttrial memorandum, and otherwise affirmed, without costs. Appeal from judgment of divorce, same court and Justice, entered May 12, 2014, dismissed, without costs, as abandoned.
This case involves tragic circumstances that disrupted and eventually destroyed the parties' marriage. The parties, who were married in 2005, have one child, a daughter born in 2007. In 2008, defendant, then age 28, suffered a stroke from an undetected brain aneurysm. He was in a coma for several weeks and underwent four brain surgeries. He emerged partially paralyzed and uses a wheelchair. Although he resides in a nursing home, and suffers from some vision, memory and speech impairments, he has never claimed in this action that he is incapable of making independent decisions. In fact, in connection with a prior custody action, the Family Court considered but declined to appoint a guardian ad litem for defendant.1
The primary dispute in this divorce proceeding is visitation. The parties previously stipulated that plaintiff would have primary custody of the child, and defendant withdrew his special proceeding to enjoin plaintiff from obtaining a religious divorce before a Beth Din. We hold that the trial court abused its discretion in sanctioning defendant for failing to comply with its June 12, 2012 order directing him to pay his share of the neutral custody forensic evaluator's fees. We hold, however, that by filing and continuing a special proceeding to enjoin proceedings before the Beth Din of America, defendant engaged in frivolous litigation. We also deem defendant's Notice of Appeal to include his parents because they have "a united and inseverable interest in the judgment's subject matter, which itself permits no inconsistent application among the parties" (Hecht v. City of New York, 60 N.Y.2d 57, 62, 467 N.Y.S.2d 187, 454 N.E.2d 527 [1983] ). Moreover, on rare occasions, in granting relief to an appealing party, the nonappealing party may also benefit (see Cover v. Cohen, 61 N.Y.2d 261, 277–278, 473 N.Y.S.2d 378, 461 N.E.2d 864 [1984] ), particularly where, as here, the issues are hopelessly entangled (see Citnalta Constr. Corp. v. Caristo Assoc. Elec. Contr., 244 A.D.2d 252, 254, 664 N.Y.S.2d 438 [1st Dept.1997] ). Upon doing so and in consideration of the merits, we affirm the trial court's finding of contempt in connection with defendant's parents' failure to comply with trial subpoenas and court orders directing them to produce documents for trial. The fine appropriately included an award of legal fees incurred by plaintiff in making a contempt motion. However, we vacate the part of the fine representing legal fees incurred for preparation of a posttrial memorandum as well as for the visitation trial itself.
With respect to sanctions attributable to defendant's failure to pay his share of the forensic evaluator's fees in time for the originally scheduled trial, defendant claimed he could not afford the expense. The trial court rejected the proffered excuse because defendant's parents were paying most of his other litigation fees. Defendant's parents, however, were under no legal or contractual obligation to pay the forensic evaluator's fees. Therefore, it is immaterial whether or not they could have done so. The trial court made no finding that defendant's expressed inability to individually pay the forensic evaluator's fees was untrue. The parties initially agreed that the forensic evaluator's fees would be paid from monies in escrow resulting from the sale of the former marital residence. There is no evidence that defendant, who is disabled and unable to work, had other monies available to him from which to pay the forensic evaluator's trial retainer and other fees. When the court notified both sides that the trial would not take place until the forensic evaluator's fees were paid in full, defendant offered to have these fees deducted from his remaining share of the escrowed funds. That option was rejected by the court and the trial was adjourned. Ultimately, the remaining amount of defendant's share of the forensic evaluator's fees and the trial retainer were paid from the proceeds of the sale of the marital home, as he had initially proposed months earlier. Defendant's conduct does not meet the definition of frivolous conduct (22 NYCRR 130–1.1 [c] ), and to the extent the sanctions awarded by the trial court were attributable to the late payment of the forensic evaluator's fees, including the fees imposed for plaintiff's second preparation for a visitation trial, they should be vacated.
Defendant's commencement of a special proceeding against plaintiff and the Beth Din for a permanent stay of an arbitration hearing on the religious divorce was frivolous within the meaning of the Part 130 rules because the action had no legal or factual merit (22 NYCRR 130–1.1 [c] ). Plaintiff was proceeding before the Beth Din for a religious divorce based upon a binding arbitration agreement (BAA) she claimed had been signed by the parties prior to their marriage and years before defendant's stroke. Instead of examining the BAA when he was notified by the Beth Din of the hearing, defendant immediately claimed it was a forgery, largely based on his recollection that he was not in Jamaica Estates (Queens County) on November 29, 2004, the date on which the BAA was executed. Defendant seized upon certain scrivener's errors in the BAA to bolster his forgery claim, ignoring sworn attestations by two witnesses who saw him sign the BAA, the notarization, and his ability to identify the physical signature as his own, even though he had having no specific memory of its execution. It was not until one year later, at his deposition, that defendant finally acknowledged the signature was his, essentially conceding that his claim of forgery had absolutely no merit. Even then defendant delayed withdrawing his petition, waiting until the very day of the hearing to do so. By failing to fully investigate whether this claim had any legal or factual basis, defendant forced plaintiff to expend unnecessary legal fees in opposing the meritless petition. This required plaintiff's counsel to conduct discovery, including defendant's deposition, and also prepare for an unnecessary trial, that never went forward.
Even if, as defendant now claims, his parents actually manipulated him into bringing the summary proceeding and were the driving force behind it, ultimately it was defendant's decision to pursue those baseless claims for over a year (see Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 698 N.Y.S.2d 226 [1st Dept.1999] ). Notwithstanding that defendant has serious health and cognitive issues, no claim was made by defendant, his attorneys, or even his parents that he was in need of a guardian ad litem, or any other substitute decision maker, because he was unable to defend or prosecute his claims (CPLR 1201 et seq. ). In fact, as noted, in the prior custody proceeding, the court found he was not in need of a guardian ad litem. There is no indication that defendant was incapable of making decisions regarding the proceedings or unaware of its implications. Consequently, the trial court correctly held defendant responsible for his own frivolous conduct.
The trial court properly awarded plaintiff legal fees incurred to defend the special proceeding as the appropriate sanction amount (22 NYCRR 130–1.1 [a] ). No hearing was required to determine the amount of the fees, because the parties stipulated in writing that the issue of counsel fees could be decided upon written submissions.
With respect to the trial court's holding defendant's parents in contempt, we uphold the trial court's finding that defendant's parents were in contempt of trial subpoenas and court orders when they failed to provide documents at trial. Despite serving each parent with subpoenas over four months in advance of trial, requiring them to testify and produce at trial records and documents necessary for plaintiff's case, defendant's parents appeared for trial without many of the records and documents demanded, including communications between the parents and defendant's lawyers. Neither defendant nor his parents brought a written motion to quash those subpoenas. It was not until trial that defendant's parents asserted, for the first time, a blunderbuss attorney-client privilege and made an oral application to quash the subpoenas. In asserting the privilege, no privilege log itemizing documents being withheld was produced. Nor were the withheld documents offered for in camera inspection. Although the trial court rejected the oral application as untimely, it nevertheless considered the privilege arguments based on the...
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