Squicciarini v Oreiro
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Squicciarini v Oreiro 2012 NY Slip Op 32745(U) October 24, 2012 Supreme Court, New York County Docket Number: 114338/11 Judge: Ellen Frances Gesmer Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 111912012 [* 1] - NEW YORK COUNTY PART PRESENT: Justice [ INDEX NO. MOTION DATE -vMOTION SEQ. NO. 3 MOTION CAL. NO. The following papers, numbered 1 to were read on this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits Answering Affidavits ... - Exhibits < 3eplying Affidavits Gross-Motion: Jpon the foregoin gated: 16- '2,q -ly ON,E EN GESMER Check one: G N A L DISPOSITION 0 LON-iNAL Check if appropriate: DONOTPOST J.S.C. DISPOSITION c.1 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YQKK: PART 24 X RICCAKDO SQUICCIARINI, ___-l-_l__r--l__lr-_lr__l_lrrl_l________-------- ------------------~- Index No, 114338/11 Petitioner, -against- DECISION AND ORIIER Motion Sequences 2 & 3 t. DIANA OREIRO, . Respondent. Motion sequenccs two and three are I . * . Ho , Ellen Gesmer, JSC ? C O ~ # ($x~ Y $ decision. 012 t I / I 4 nt mother) seeks an order: ( I ) granting her lcave On motion sequence two, rcsp to renew and/or reargue this cowt s d~~~~~~~~~ 14,2012 (the March Order), which directed the return of the parties children, Diego Riccardo quic rini (DOB: 7/18/06) and Eve Lourdes Squicciarini (DOB: 7/26/08j, to Italy with their father, petitioner Riccardo Squicciarini (Father), pursuant to Article 3 of the Ilague Convention mcl the International Child Abduction Remedies Act (42 USC $$11601-11611); (2) upon renewal and reargument, (a) finding that there is grave risk that the children s return to Italy would expose thcm to physical and/or psychological haiiii; or, in the alternative (bj appointing an attorney to represent the parties children and scheduling a hearing on whether the Mother wrongliilly removed the children from Italy; or, in the alternative, ( c j staying the return ofthe children and permitting the Mother to litigate custody in Italy while she and the childreii remain in Ncw York, and directing the Father to pay support and provide housing for the Mother and thc children, and directing the Father to stay away from the Mother except incidental to visitation, pending resolution of this mattcr; or, in the alternative, (dj directing tlie Mother to post a bond and retain physical custody of the children for purposes of returning them to Italy; and (3j granting her time to. file an Lmswerto the Father s Petition. The Father opposes the motion and cross-moves for an order awarding him costs and counsel fees as sanctions for frivolous behavior, On motion scquencc three, the Father seclcs an order: (1j granting him unsupervised overnight parenting time with the parties children in New Yorlc in July 2012; (2) consolidating all matters concerning tlie parties and their children pending in Suffolk County Family Court; and (3) granting him a temporary parenting tinic schedulc, via regular Skype and telephone contact when he returns to Ttaly, during the pcndency of the appcal to the Appellate Division in thc First Department by the Mother of the March Order, The Mothcr opposes the motion, and cross-moves for counsel fees as sanctions. FACTS The background facts of this matter are set forth in the March Order, this court s interim order on y y motion sequence three dated J ~ l 23,2012 (the J ~ l Order), and the Order of the Appellate Division for - ~ The court notes that in prior filings, the parties havc erroneously been referred to as plaintifl and defendant, respectively. However, since this matter is a special proceeding pursuant to Article 4 01 the CPLR, they should havc been referred to as petitioner and respondent, and the court will refer to them that way in this dccision and order. [* 3] Index no. I 1 433811I Decision and Order Motion Sequences Two and Three Page 2 the First Department dated October 23, 2012 on the Mother s appeal of the March Order. They will not be repeated here, PROCEDURAL HISTORY This is a special proceeding pursuant to Article Four of the CPLR, in which the Father seeks the return of the parties children to his custody so that he can return to Italy with them, wherc both parties and the children resided until the Mother brought the children to New York on or about November 14, 201 1. The Father s Petition was brought on by Order to Show Cause (motion sequence onc) dated December 22,201 1. Thc Mother opposed the Father s motion, and filed a Cross-motion seeking to 1 dismiss the Petition. 0 1March 14,2012, this court issucd the March Order, granting the relief requested by the Father, and denying thc Mother s Cross-motion to dismiss, Thereafter, the Mother filed an appeal of the March Order. * On July 23,2012, this court granted the Father s request 011 motion sequence three to consolidatc with this proceeding the Mother s family offense proceeding pending in Suffolk County Family Court, and held a hearing that morning with respect to the Father s application on motion scquencc three for unsuperviscd overnight @renting time in New York, and Skype and telephone contact with thc children pendente lite, following his rcturn to Italy. On the same day, following the hearing, the court issucd an interim decision and order on motion sequciice two, which: (1) granted the Father s request for unsupervised overnight visitation in July 20 12 with the children; (2) dirccted the Father to turn over his passport to the Mother s attorney until the children were retumcd from the visitation; (3j directed thc Father to undergo hair i olliclc and urinalysis tests for a drug panel, including cocaine, prior to the beginning of the visitation;2 (4) dirccted the Father not to use cocaine or any other illegal substance during the remainder of the time that lie is in New York, and not to drink alcohol while with the childreii or for twelve hours beforc each access period began; (5) direcled the Father not to opcrate a niotor vehicle with the children in it diiriiig any of the access periods; (6) prohibited hiin from possessing a gun during any of his access pcriods with the children; (7) required him to post the sum of $1 5,000, along with his Rolex watch, with the Mother s attorney as escrow agent, pending return of the children from the scheduled visitation; (8) awarded the Father Skype contact with the cliildrcn every Monday and Wednesday at 5:30 p.m. Ncw York time and every Saturday between 7:30 and S:O0 a.m.; and telephone contact with the children every Tuesday, Thursday, Friday and Sunday between 5:30 and 7:OO p.m.; and (9) directed the parties and counsel to appear on September 5,2012 at 9:30 a.m. for a hearing on the Motlm s family offense petition. By stipulation dated August 29,2012, which was so-ordered by the court (the August Stipulation): (1) the Mother withdrew her family offense petition with prejudice; (2) the Mother agreed to surrendcr her passport and the children s 1J.S. passports to her attorney as escrow agent; (3) the Mother surrendered the children s Italian passports to the Father s attorney as escrow agent; (4) fhc Mother agreed not to travel outside the United Slates or to Hawaii with the children without the written agreement of the Father or order of the court, and not to leave this jurisdiction with the children without notifying the Father in advance; (5) the Mother agreed that this court has exclusivc jurisdiction over the proceeding cormnenced I I I The result of the drug testing was provided to the court, and was negative for cocaine and other substances. [* 4] Index no. 114338/11 Decision and Order Motion Sequences Two crnd Three Page 3 by the Father in this court; and (6) tlie parties agreed not to commit any family oi i enses against each other. Thereafter, counsel for the parties asked this court to hold motion scquences two and thee in abeyance pending a determination by the Appellate Division for the First Depczrtmenton the Mother s pending appeal of the March Order. By order dated Octobcr 23, 2012, tlic Appellate Division for the First Department affirmed the March Order by unanimous decision, finding that the petition was properly granted since [tlic Father] met his burden of establishing by a preponderance of the evidence that the children had been wrongfully removed from their country ofhabitual residence (42 USC 91 1603[e][l][A]; see Gitter v Gitfer, 396 F3d 124, 130-131 [2d Cir ZOOS]). In opposition, [the Mother] failed to salisfj her burden of establishing by clear and coiivincing evidence that a grave risk of harm to the children would result by thcir return to ltaly (42 USC 5 11603[e][2J[A]). Othcr than the allegations contained in [the Mother s] afiidavit, there is no evidence that [the Father] verbally or physically abused [the Mother]. To the contrary, the evidencc cstablishes that the parties had an amicable relation ship prior to [the Mother s] departure with the children. (Squicciarini v Oreiro, - AD3d - ,2012 NY Slip Op. 07070 [lst Dept 20121). Thercfore, the only issues left on motion sequence two are: the Mothcr s requests for: (1) leave to renew and/or reargue [he March Order; (2) various relief upon renewal andlor reargwnciit; and (3) tiiiic to file an Answer; and the Fathcr s request for counsel fees as sanctions. The only issuc left on motion sequence three is tlie Mother s Crossmotion for counsel fees as sanctions. ANALYSIS The Mother s Request for an Extension of time to File a n Answer Section 404(a) of the CPLR pcrrnits respondent in a special proceeding to either file ttn answer to the petition, or raisc legal objections in a motion to dismiss. The Mother filed a Cross-motion to dismiss the Pctition, which was denied. It is within the court s discretion to grant or deny a rcquest to iile a i answer after denial of a motion to dismiss a petition in a special procecding (CPLR $404[a]; see UZSO Matter ofDudge, 25 NY2d 273 [19691[respondent in a special proceeding does not have a right to interpose an answcr after denial of motion to dismiss petition]), Given that the court has considered not only the Mother s affidavit and exhibits in support of her Crossmotion, but her affidavits and exhibits on two additional motion sequences as well as her family offense petition, which was consolidated with this matter, the court is well aware of the Mother s position on all of the issues in the Petition, as well as of her defenses and counterclaims. Accordingly, the Mother s request for time to file an Answer is denied. Renewal and Reargument A motion for leave to rcargue shall be specifically identified as such, and shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court...but shall not include any matters of fact not offered on the prior motion (CPLR $2221 [d]). A motion for leave to renew shall be [* 5] Index no. 114338/11 Decision und Order Molion Sequences Two and Three Page 4 identified specifically as such, and shall be based upon new facts not ofi ercd on the prior motion that would change tlic prior determination... (CPLR $2221[e]). A combiiied motion for leave to renew and reargue shall identify separately and support sepuately each item of relief sought (CPLR 82221[q). Failure to include the underlying motion papers on a motion to renew or reargue can be fatal to such a niotioii (Shed v Pataki, 236 AD2d 92 [3d Dept 19971, lv den 91 NY2d 805 119981; Lower Main Slreef, L.L.C. Y Thomas lie & Parlurers, 4/5/2005 NYLJ 19, at col 3 [Sup Ct Nassau Co 20051). Renewal is granted sparingly ... ; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentati~n~ ~ v Peguero, 72 AD3d 600,602 [lst (Uenry Dept 2010][quoting Matter qf Weinberg,132AD2d 190,210 [lstDept 19871, lv dismissed 71 NY2d 994 [1988]). A motion to reargue must bc made within thirty days after service of a copy of the undcrlying order with notice of. enlry (CPLR 2221[d][3]). The Mother s motion for leave to renew and/or reargue i s denied for the following reasons. First, the hew allegations in licr papers are about events she claims happened prior to Noveniber 14,2011, but which shc failed to include in her affidavit in support of her Cross-motion on motion sequence one. She provides no reasoiiable excuse lor not having produced thcse allegations earlier. Accordingly, they do not form a proper basis for a motion to renew (CPLR g2221 [c][21; Henry v I egziero, 72 AD3d 600, 602 [l Dept 201 01). Second, the only legal argument that the Mother makes as a basis l or reargument is that she should have been given the right to submit an aiswcr to the Petition before summarily disposing of this a~tion. ~ discussed above, this is wrong as a matter of law. Finally, to the extent that the As Mothcr is arguing that lhis court overlookcd or misapprehended facts, the court coilsidered the Mother s vague and unsubstantiatcd claims about the Father s bchavior, ad the temporary order of protection she i obtained expiirts in Suffolk County Family Court (TOP),3and did not iind them sufficient to make out a prima f c e casc, much less to mcct her burden to prove by clear and convincing evidence, that returning ai the children to Italy would pose a grave risk to them of physical harm or otherwise place them in an intolerablc situation (People ex rel. Geiser v VuZenlinc, 17 Misc3d 1117A [Sup Ct Richmond Co 20071). Since the Mother s motion to renew andor reargue is denied, the court nced not address her requests for relief upon renewal and reargument. Sanctions Each party has it pending request for counsel fees and costs as saiictions from the other. The Motlier s request for sanctions was based on her position that this court did not have jurisdiction over this matter. Given the p,wtics agreeincnt that it does in the August Stipulation, and given the recent Order of the Appellate Division for the First Department, the court deems her request withdrawn. As for the Father s request, although the Mother was not successful on most of her requests and arguments to this court, and withdrew others, the court cannot find, on balance, that her actions were frivolous within the meaning of 22 NYCRR 5 130-1.1. Accordingly, the Father s request for sanctions is denied. Accordingly, it is ORDERED that all rclief requested on inotion sequences two and three not previously granted is The TOP was subsequently vacated with the consent of the Mother, pursuant to the August Stipulation. [* 6] Index no. 114338A 1 Decixion and Order Molion Sequences Two and T?iree Page 5 denied; and it is further ORDERED that the Mother shall produce the parties childrcn, Diego Riccardo Squicciarini (DOB: 7/18/06) and Eve Lourdes Squicciarini (DOB: 7/26/08) (collectively, the Children), in Part 24, Room 210 of thc Supreme Court at 71 Thomas Street, New York, New York on Thursday, October 25, 2012 at 10:30 a.m.; and it is further ORDERED that, pursuant to the provisions of the Convention on tlie Civil Aspects OF International Child Abduction, done at the Hague on October 25, 1980 (Convention) and the International Child Abduction Remedies Act, 42 U.S.C. tj1 1601 el seq., the minor children, Diego Riccardo Squicciarini (DOB: 7/18/06) and Eve Lourdes Squicciarini (DOB: 7/26/08) (collectively, the Children), shall be returned in the company oftheir Father, Riccardo Squicciarini (Father), to the sovereign nation of Italy, and the Father shall report the delivery of the children to the appropriate Central Authority; and it is further ORDURED that the Father has the exclusive right to the physical and legal custody of the children during the period of time required to return tlie Childrcn to Italy, the country of the Children s habitual residence, provided, however, that nothing in this Order shall prevent the Mother from traveling to Italy to . pursue her custodial and/or visitation rights as to the Children there, either by agreement of the parties, or from a tribunal of competent jurisdiction, as the case may be; and it is further ORDERED that thc Father shall kecp thc Mother apprised of the Children s whereabouts in Italy, including their residence address and a telephone number, and, if possible a Skype or other computer video address, so that shc may cornniunicate with the Children at times reasonably convenient for the Children and for reasonable periods of time, subject to further order of a court of competent jurisdiction; and it is further ORDERED that this Order is not a determination of the merits of any custody issues within the meaning of Article 19 of the Convention; and it is further ORDERED that this Order is court original and concurrent jurisdiction r- This constitutes the decision and order of this upon this hWt.072012
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