Millie S. v. Thomas S.

• Decision Date: 11 May 2018
• Docket Number: O–18972–17/18B
• Citation: 77 N.Y.S.3d 829
• Parties: In the Matter of MILLIE S., Petitioner, v. THOMAS S., Respondent.
• Court: New York Family Court

60 Misc.3d 493
77 N.Y.S.3d 829

In the Matter of MILLIE S., Petitioner,
v.
THOMAS S., Respondent.

O–18972–17/18B

Family Court, New York.

Decided May 11, 2018

77 N.Y.S.3d 830

The attorneys are: for Wife, Valerie H. Tocci, Esq. of Stutman, Stutman & Lichtestein, 135 West 50th Street, 18th Floor, New York, NY 10020, (212) 226–6644; and for Husband: Mark S. Helweil, Esq., 230 Park Avenue, 18th Floor, New York, NY 10169, (212) 867–5353.

Javier E. Vargas, J.

For the following reasons, the Motion by Respondent Thomas S. (hereinafter "Husband"), for summary judgment dismissal of the Violation Petition, under CPLR 3212, is granted and the proceeding is hereby dismissed in accordance with the following decision.

By Petition dated July 12, 2017, Petitioner Millie S. (hereinafter "Wife") commenced the underlying Family Court Act article 8 family offense proceeding against Husband in the Kings County Family Court, alleging that he had committed family offenses against her, including assault, menacing and harassment, when in drunken rages he insulted, verbally abused, threatened her life with an ax, and blocked her from leaving the marital residence with their Child. Following several appearances, the Wife, a financial advisor, contemporaneously commenced a divorce action against Husband, who is in the insurance industry, in Kings County Supreme Court. By Short Form Order (Adams, J.) dated November 3, 2017, the parties reached an agreement with respect to the Wife's family offense proceeding in Family Court as well as to Husband's parenting time with their Child in Supreme Court.

As a result, on November 6, 2017, the Family Court (Vargas, J.) fully allocuted the parties and issued a Final Order of Protection against Husband, on consent, excluding him from the marital residence for one year; directing him to stay away from the Wife's home and place of employment; directing him to refrain from committing any family offense against her, including harassment, intimidation, threats and assault; and relevantly, prohibiting him from communicating "or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with [Wife] * * * no text messages; no third-party contact." The Final Order of Protection was made subject to Supreme Court or Family Court orders of custody and visitation and expires on November 5, 2018. Subsequently, the parties continued litigating their matrimonial action and have made numerous appearances before the Hon. Rachel A. Adams in Supreme Court.

By Violation Petition dated March 20, 2018, Wife commenced the instant proceeding in Family Court claiming that Husband and his Private Investigator violated the Order of Protection by emailing and "making third-party contact with" Wife's attorney, Valerie H. Tocci, Esq., on March 3, 8 and 9, 2018, allegedly making threats of criminal prosecution against Wife by the NYPD and the District Attorney's Office for financial fraud unless she capitulated to the Husband's demand to regain access to their apartment "in exchange for a $1,000 payment and the right to purchase the apartment at a price to be agreed upon as we complete financial discovery and settlement." Specifically, the Husband's Private Investigator wrote an email to Wife's counsel on March 3, 2018, stating that:

[He] was retained by [Husband] to investigate the matter of numerous unauthorized withdrawals from his USAA

77 N.Y.S.3d 831

bank account by your client, among other things. [He] obtained all relevant documentation to establish a convincing criminal case against [Wife] in this matter and submitted this to appropriate detectives with the NYPD. * * * Based on the strengths of this case as well as the sophisticated financial experience of your client, which clearly established criminal intent, [the NYPD and the DA] have reviewed the documentation and agreed to assist in moving forward with a criminal action. * * * [Husband] has directed [him] to exercise restraint in this matter, until you have had the opportunity to have substantive discussions in the coming week. Should [Husband] not make any progress in this respect, [he has] been instructed to assist him with filing charges on March 9, 2018 and ensuring the criminal prosecution of your client."

Wife's counsel wrote to the Supreme Court complaining about the Husband's actions. In turn, Husband wrote an email to Wife's counsel on March 8, 2018, stating that:

[He] reviewed [Counsel's] letter to the court, which reveals your lack of understanding with regard to the dramatic consequences of your client's arrest for 9 felony acts of financial fraud. An arrest alone on those grounds would mean your client would encounter significant obstacles with any background check for a position in corporate America * * * [He] has gone to great lengths to communicate your client's vulnerability without filling charges largely for the benefit of my daughter due to the severity of the immediate consequences as we will at some point have to resume shared parenting. However, failure to comply with my request will result in charges filed tomorrow. An indictment would follow her arrest shortly, which would jeopardize her continued employment.

Based on these emails, Wife contends that Husband committed the family offenses of harassment in the second degree, coercion and intimidation in violation of the Order of Protection's no communication provision, which should be dealt with by the Court in accordance with Family Court Act § 846–a.

By Notice of Motion returnable May 1, 2018, Husband moves for summary judgment dismissing the Wife's Violation Petition pursuant to CPLR 3212¹ or, in the alternative, for transfer of the proceedings for consolidation with the pending Supreme Court matrimonial action. In support of his Motion, Husband argues that the allegations in Wife's Violation Petition do not amount to any violation of the Order of Protection by Husband since there are no allegations that either him nor the Private Investigator contacted the Wife directly at any time, the Wife has not personally denied the financial fraud accusations against her, and that Husband did not commit any impropriety as he was within his right to retain and use the services of a Private Investigator to gather...