Townes v. Coker

• Decision Date: 08 February 2012
• Citation: 943 N.Y.S.2d 823,35 Misc.3d 543,2012 N.Y. Slip Op. 22031
• Parties: David TOWNES, Plaintiff, v. Priscilla COKER, Defendant.Priscilla Coker, Plaintiff, v. David Townes, Defendant.
• Court: New York Supreme Court

2012 N.Y. Slip Op. 22031
35 Misc.3d 543
943 N.Y.S.2d 823

David TOWNES, Plaintiff,
v.
Priscilla COKER, Defendant.Priscilla Coker, Plaintiff,
v.
David Townes, Defendant.

Supreme Court, Nassau County, New York.

Feb. 8, 2012.

[943 N.Y.S.2d 824]

Abrams Fensterman Fensterman Eisman Greenberg & Einiger, Lake Success, Attorney for Plaintiff.

Gassman Baiamonte & Betts, Garden City, Attorney for Defendant.

ROBERT A. BRUNO, J.

[35 Misc.3d 544] It is ordered that this motion is decided as follows:

Priscilla Coker (“Wife”) seeks an order: (A) pursuant to CPLR § 2221, granting reargument of the denial of Wife's application for attorneys' fees, pendente lite, sought in Action No. 1; (B) upon granting reargument, awarding Wife counsel fees, pendente lite in the amount of $40,000.00; (C) in the alternative, in the context of Action No. 2, pursuant to § 237 of the Domestic Relations Law, awarding Wife interim counsel fees, pendente lite, in the sum of $40,000.00 payable by Mr. Townes directly to Wife's counsel, to permit Wife to properly prosecute this matter, with leave to apply for further sums as may be warranted; (D) pursuant to CPLR § 3212, granting Wife summary judgment with respect to the cause of action for a divorce alleged in Action No. 2 based upon the irretrievable breakdown of the marriage between the parties for a period of at least six months; and (E) pursuant to CPLR § 3212, granting Wife summary judgment establishing that the Post–Nuptial Agreements dated October 5, 2007 are valid, enforceable and dispositive as to equitable distribution, support and maintenance. David Townes (“Husband”) opposes said application, in part.

Procedural Background

The parties were married on June 12, 1981 and have three (3) children, who are all emancipated. On October 5, 2007, the parties entered into post-nuptial agreements concerning the issues of maintenance, support and equitable distribution.

On October 6, 2008, Wife commenced an action for divorce against Husband by filing a Summons and Verified Complaint (“2008 action”). Husband's former counsel then appeared in the action by service of a Verified Answer with Counterclaims. In addition, Husband served a Demand for Change of Place of Trial. In her Verified Reply, Wife consented to the entry of the Judgement of Divorce based on Husband's counterclaim for constructive abandonment. Further, in an Order dated January 16, 2009, Hon. Anthony J. Falanga denied Husband's motion to change venue from Nassau County. Subsequently, on March 23, 2009, the parties executed a Stipulation, “So–Ordered” by [35 Misc.3d 545] Hon. Anthony J. Falanga, wherein Wife agreed to discontinue the 2008 action so that Husband may commence his own action on the grounds of constructive abandonment.

Pursuant to the terms of the March 23, 2009 Stipulation, on or about April 8, 2009, Husband commenced an action for divorce based upon the grounds of constructive abandonment by service of a Summons and Verified Complaint (Action No. 1). Wife served a Verified Answer consenting to a divorce on the grounds of constructive abandonment. Wife did not assert a counterclaim.

On November 12, 2009, Wife's counsel served a Request for Judicial Intervention and Request for Preliminary Conference. On May 3, 2010, a Preliminary Conference was held before this Court. Thereafter, the parties and their respective counsel appeared for several conferences with the Court on: July 8, 2010, September 16, 2010, January 6, 2011, February 10, 2011 and March 9, 2011. During this period of time, Wife made an application

[943 N.Y.S.2d 825]

for sanctions which was later withdrawn in accordance with the terms of a Stipulation executed on July 6, 2010. A second application was made by Wife seeking to compel discovery. This motion was ultimately decided by this Court on November 15, 2010. Also during this period of time, on January 6, 2011, the parties entered into a Stipulation, “So–Ordered” by this Court, wherein the parties agreed to utilize the services of Fred Shapiro, Esq., as mediator, in hopes to resolve this matter. It is uncontroverted that the parties never met with Mr. Shapiro.

On or about March 21, 2011 Husband made a motion, inter alia, seeking to discontinue Action No. 1. This Court denied Husband's motion and held:

In the instant matter and after three (3) years of litigation, Husband suddenly claims that he no longer wants a divorce because it will cause “irreparable harm to the character and spiritual life” of the parties and their children. Wife avers that Husband induced her to discontinue the 2008 action under false pretenses so that Husband could control the procedural posture of the this action.

Given the tortured procedural history in this action, it is difficult for this court to find Husband's recent epiphany to be genuine. Here, Husband contends that he never desired a divorce yet he enters into a Stipulation withdrawing the 2008 action[35 Misc.3d 546] and willingly brings the instant action. Moreover, to grant discontinuance now would prejudice Wife's rights to enforce the outstanding order of the court dated January 6, 2011 as well as cause further delay in achieving the ultimate dissolution of marriage and the distribution of assets in accordance with the parties post-nuptial agreement.

It appears to this court that Husband's only accomplishment over the course of the past three (3) years of litigation has been to waste precious judicial resources which only impairs the efficient functioning of the courts and the timely adjudication of claims.

On or about February 15, 2011 Wife commenced Action No. 2 and moved, inter alia, to consolidate Action No. 1 and Action No. 2 pursuant to CPLR § 602 which this Court granted, which brings the parties to the instant motion.

Sequence No. 5

Branch “A” of Wife's application seeking reargument of this Court's prior Decision and Order dated August 10, 2011 in Action No. 1 regarding the award of attorneys fees has been rendered MOOT, in light of this Court's Amended Decision and Order dated November 9, 2011.

Branch “B” of Wife's application seeking legal fees upon granting her application for reargument is DENIED, as reargument was not granted.

Branch “C” of Wife's application seeking legal fees in the context of Action No. 2 pursuant to Domestic Relations Law § 237 in the amount of $40,000.00 is GRANTED to the extent, Husband is required to pay $27,810.58, within thirty (30) days of this Decision and Order.

Branch “D” of Wife's application seeks an Order granting her Summary Judgment with respect to her cause of action alleged in Action No. 2, based upon the irretrievable breakdown of the marriage between the parties...