A.H. v. Y.G.
| Decision Date | 08 September 2021 |
| Citation | 2021 NY Slip Op 50859 (U) |
| Parties | A.H., Plaintiff, v. Y.G., Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Recitation as required by CPLR 2219 (a) of the papers considered:
Papers Numbered
Upon the foregoing papers and all prior proceedings in this matrimonial action, the court finds as follows:
Defendant moved by order to show cause (OSC) filed on December 10 2019, for an order: (1) pursuant to Judiciary Law section 753 and the Order dated November 18, 2019 (Ciccotto, J.), issuing a warrant of commitment and order of arrest for Plaintiff to be committed to the county jail for his failure to comply with prior orders of this court entered on June 26, 2018 September 13, 2018, July 3, 2019, September 5, 2019, and November 18, 2019, and finding that he has deliberately failed and refused to purge his contempt; (2) pursuant to the order dated November 18, 2019 (Ciccotto, J.), directing the Sheriff to arrest Plaintiff and commit him to the custody of the Department of Corrections or county jail until he purges his contempt by making all outstanding payments in compliance with the November 18, 2019 order and all prior orders of this court; (3) pursuant to Domestic Relations Law (DRL) section 238, and Judiciary Law sections 770 and 773, renewing and revising Defendant's previous applications dated August 16, 2019 and November 14, 2019 for, and granting to Defendant, the sum of $25, 775 as and for counsel fees for the necessity of this order to show cause as mandated by Plaintiff's adjudicated contempt of four court Orders with leave to request further fees; (4) pursuant to DRL section 238, and Judiciary Law sections 770 and 773, granting Defendant the additional sum of $4, 500 as and for counsel fees for the necessity of this order to show cause, with leave to request further fees; and (5) pursuant to the November 18, 2019 Order and Judiciary Law section 753, sanctioning Plaintiff in the sum of $10, 000 for repeated and continuous adjudicated contempt of court, resulting in severe prejudice and hardship to Defendant and endangering the welfare of the parties' children (motion sequence no. 8).
Defendant's former counsel, Mazur, Bocketti, Nisonoff & Khavulya, P.C. (the Mazur Firm), moved by OSC filed on January 23, 2020, for an order: (1) granting the Mazur Firm leave to withdraw as counsel for Defendant; (2) granting the Mazur Firm a retaining lien in the sum of $168, 507.21 as and for legal services and disbursements rendered and incurred on behalf of Defendant and fixing said fee and lien; and (3) pursuant to Judiciary Law section 475, granting the Mazur Firm a charging lien in the sum of $168, 507.21 upon the proceeds of the judgment recovered by Defendant in this action (motion sequence no. 10).
Motion sequence numbers 8 and 10 were referred to Special Referee Diana J. Szochet (the Special Referee) by Order dated July 24, 2020, to hear and report with recommendations as to the issues of "granting Defendant's former [a]ttorney a charging lien and/or retaining lien [and] for contempt" (NYSCEF Doc No. 3). The Special Referee issued a Report with Recommendations dated April 12, 2021 (the Report) (NYSCEF Doc No. 64).
Plaintiff moved by OSC filed on April 26, 2021, for an order pursuant to 22 NYCRR section 202.44, confirming the report of Special Referee Diana J. Szochet dated April 12, 2021, in its entirety (motion sequence no. 14).
The Mazur Firm cross-moved on May 3, 2021, for an order: (1) determining motion sequence number 8 de novo, on the grounds that the Special Referee was not empowered, and had no authority under the order of reference, to consider and make a recommendation as to the remedy and relief requested in motion sequence number 8 as such remedy rests with the court; or alternatively, (2) rejecting the Special Referee's failure and refusal to consider and make a recommendation as to the imposition of punishment for Plaintiff's failure to comply with his obligation to pay the Mazur Firm the $40, 000, for which he has already been adjudicated in contempt, and that this court determine motion sequence number 8. The Mazur Firm further seeks an order incarcerating Plaintiff until he purges his contempt and awarding movant $30, 273 as and for counsel fees. The Mazur Firm further seeks an order: (i) rejecting, as a matter of law, the Special Referee's recommendation that the Mazur Firm is not entitled to a charging lien until after a hearing at the end of the litigation as contrary to statutory and case law, and (ii) awarding the Mazur Firm a charging lien in the sum of $168, 507.21 (motion sequence no. 15).
The parties were married on March 18, 2004. Three children were born of the marriage, all of which are unemancipated. Plaintiff commenced this action for divorce by summons with notice filed on July 24, 2017. Defendant formally appeared in this action through her then attorneys, the Mazur Firm, by notice of appearance filed on August 17, 2017.
On May 10, 2018, Defendant moved by OSC, inter alia, for an award of counsel fees (motion sequence no. 1). The parties resolved the issues raised in Defendant's motion by so ordered stipulation dated June 26, 2018. Therein, Plaintiff agreed to pay to the Mazur Firm $10, 000 for interim counsel fees on or before July 27, 2018. Upon Plaintiff's failure to pay the Mazur Firm was granted permission to enter judgment without further notice. Upon affirmation of Plaintiff's default by Mirra Khavulya, Esq. of the Mazur Firm, a judgment was entered against Plaintiff in favor of the Mazur Firm in the amount of $10, 000 on August 8, 2018, An order dated September 13, 2018, requires Plaintiff to satisfy the August 8, 2018 judgment by paying as follows: $3, 000 on or before September 30, 2018; $3, 000 on or before October 30, 2018; $3, 000 on or before November 30, 2018; and $1, 000 on or before December 30, 2018. On March 1, 2019, Plaintiff filed the note of issue and certificate of readiness for trial.
Thereafter, Plaintiff moved to quash subpoenas served upon nonparties on April 11, 2019 (motion sequence no. 4) and Defendant cross-moved on May 7, 2019 for an award of interim counsel fees in the sum of $85, 000 to be paid directly to the Mazur Firm (motion sequence no. 5). Pursuant to the court's decision and order dated July 3, 2019, Defendant was awarded interim counsel fees in the sum of $40, 000. Plaintiff was ordered to pay this amount directly to the Mazur Firm within 20 days of service of a copy of the decision and order upon him. The July 3, 2019 decision and order granted the Mazur Firm leave to enter a judgment for the full amount due and owing, plus statutory interest, upon 20 days written notice of default. The Mazur Firm served a copy of the decision and order with notice of entry upon Plaintiff's attorney on July 9, 2019.
Defendant then moved by OSC filed on August 19, 2019, for an order, inter alia, finding Plaintiff in contempt for his failure to pay $40, 000 to the Mazur Firm as required by the July 3, 2019 decision and order (motion sequence no. 6). A second judgment was entered against Plaintiff in the amount of $40, 000 on August 28, 2019, upon affirmation of default by Mirra Khavulya, Esq. of the Mazur Firm. While Defendant's OSC was pending, the court issued an order dated September 5, 2019, which directed Plaintiff to pay the Mazur Firm $40, 000 past due counsel fees as follows: $20, 000 on or before September 10, 2019; and $20, 000 on or before September 25, 2019.
Defendant's motion sequence number 6 was granted by Order dated November 18, 2019. The court found Plaintiff in contempt of the Orders dated June 26, 2018; September 13, 2018; July 3, 2019; and September 5, 2019. Plaintiff was afforded an opportunity to purge his contempt by, among other things, paying $40, 000 to the Mazur Firm by December 3, 2019. If Plaintiff failed to timely pay, the Order states "the court will consider the prospect of commitment [and] other relief under DRL [and] Judiciary Law." The Order further scheduled the matter for trial.
Defendant filed the instant motion sequence number 8 on December 10, 2019, seeking contempt-related relief. Thereafter, the Mazur Firm moved by OSC on January 23, 2020, to be relieved as Defendant's counsel and for entry of retaining and charging liens (motion sequence no. 10). The firm of Cox Padmore Skolnik & Shakarchy LLP was substituted as attorneys of record for Defendant in place and instead of the Mazur Firm by consent to change attorney dated January 31, 2020 and filed with the County Clerk on February 26, 2020. Defendant further retained Kenneth E. Stroup, Jr., Esq. for the limited purpose of defending against the Mazur Firm's applications to impose retaining and charging liens against Defendant. The court referred the issues raised in motion sequence numbers 8 and 10 to the Special Referee by Order dated July 24, 2020 (NYSCEF Doc No. 3). Specifically, the referral Order states that the referee shall hear and report with recommendations on the issues of "granting Defendant's former [a]ttorney a charging lien and/or retaining lien [and] for contempt."
This action was converted to e-filing by stipulation filed on September 3, 2020. The Special Referee issued the Report on April 12, 2021 (NYSCEF Doc No. 64). The Report returned the issue of contempt to the court with no findings of contempt...
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