E.I. v Y.A.

[*1] E.I. v Y.A. 2018 NY Slip Op 50509(U) Decided on March 20, 2018 Supreme Court, Queens County Koenderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2018
Supreme Court, Queens County

E.I., Plaintiff

against

Y.A., Defendant.



9583/2017



Attorney for Plaintiff: Andrea Scampoli

Attorney for Defendant: Briana Denney
Elisa S. Koenderman, J.

Plaintiff moves for leave to reargue and renew her motion to vacate or modify the court's order directing that she transfer the child L.I. from the Central Park East School 2 in Manhattan to P.S. 196 in Queens. Plaintiff also moves for temporary physical custody of the children, L.I. and A.A., as well as for temporary maintenance, temporary child support and interim counsel fees. Finally, Plaintiff asks the court to order Defendant to assist in transporting the children back and forth between Queens and Manhattan for his parental access. In determining the motion, the court considered Plaintiff's Notice of Motion, Defendant's Affidavit in Opposition and Plaintiff's Affidavit in Reply (see CPLR 2219).

REARGUE AND RENEW

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On October 4, 2017, Plaintiff filed a pro se emergency order to show cause to transfer [*2]L.I. from P.S. 196 in Queens to school in Manhattan [FN1] . Thereafter, on October 10, 2017, Defendant filed an emergency order to show cause to prevent L.I.'s transfer from P.S. 196. Before the court could decide either motion, Plaintiff unilaterally withdrew L.I. from school in Queens and enrolled her at the Central Park East 2 school in Manhattan. Accordingly, on October 26, 2017, the court ordered Plaintiff to re-enroll L.I. immediately at P.S. 196 in Queens. On November 14, 2017, the court denied Plaintiff's motion to vacate the school transfer order [FN2] . Plaintiff now moves to reargue and renew that motion.

The court may grant a motion to reargue where it has overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (see CPLR 2221[d][2]; see also Frenchman v Lynch, 97 AD3d 632, 633 [2d Dept 2012]). The opportunity for reargument is not another chance for an unsuccessful party to argue a previously decided issue (see McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]). Additionally, a motion for leave to renew must allege new or additional facts not offered on the prior motion which would change the prior determination, as well as contain reasonable justification for the failure to present such facts (see CPLR 2221[e][2] & [3]; see also Federal National Mortgage Association v Sakizada, 153 AD3d 1236, 1237 [2d Dept 2017]; DLJ Mortgage Capital Inc v David, 147 AD3d 1024, 1027 [2d Dept 2017]; Dervisevic v Dervisevic, 89 AD3d 785, 786 [2d Dept 2011]; Rowe v NYPD, 85 AD3d 1001, 1003 [2d Dept 2011]). Likewise, it "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Federal National Mortgage Association, 153 AD3d at 1237).

Plaintiff claims that she recently obtained a copy of Defendant's affidavit in a pending civil action in which he states that the plaintiff-seller coerced him to sign a purchase agreement by threatening the lives of his wife and daughter. Plaintiff argues that L.I. therefore is at risk when she is with Defendant. Plaintiff asserts that the court consequently should vacate the school transfer order and set a visitation schedule "that will ensure the safety of the children." Plaintiff additionally asks the court to order Defendant to pick up and drop off the children in Manhattan for his parental access. Notably, Plaintiff does not ask the court to suspend Defendant's access to the children.

The court neither overlooked or misapprehended the facts, nor misapplied the law, in making its prior determination. Further, Defendant's sworn statements in an unrelated lawsuit are not new facts which would change the court's prior determination. Accordingly, the court denies leave to reargue or renew the motion to vacate or modify the school transfer order. Moreover, since Plaintiff enrolled the children in school in Manhattan without Defendant's notice and consent or the court's permission, Plaintiff shall continue to transport the children to and from Queens for Defendant's parental access.

CUSTODY

The court reserves decision on Plaintiff's motion for sole physical custody of the children pending the outcome of the hearing previously ordered on Defendant's emergency order to show [*3]cause for sole custody (Motion Sequence No. 5). In any event, the parties' intent, as expressed in their May 2016 separation agreement, was to have joint legal and physical custody of the children. Indeed, it appears that the parties shared access to the children until October 4, 2017, when Defendant was arrested for allegedly endangering L.I.'s welfare and falsely imprisoning her as well as attempting to assault A.A.[FN3]

On October 28, 2017, the court awarded Defendant therapeutic supervised visitation with the children. On November 14, 2017, the court rendered an oral decision which affirmed the parties' joint legal custody of the children but continued the status quo by temporarily awarding primary residential custody to Plaintiff with visitation to Defendant. Because the visits were progressing well, on November 28, 2017, the court awarded Defendant hybrid therapeutic supervised visitation where the children visited with him at his parents' residence as well as the therapist's office. On December 20, 2017, the court issued an order which restored Defendant's equal access to the children, albeit supervised by Defendant's family members, according to the schedule set forth in the parties' May 2016 separation agreement. This order in effect superseded the court's oral decision of November 14, 2017 awarding Plaintiff temporary primary residential custody of the children. Indeed, December 20, 2017 order affords Defendant one more overnight with the children per week than Plaintiff.

Nevertheless, because L.I. has refused to acquiesce to Defendant's expanded overnight access to her, she continues to reside temporarily with Plaintiff while Defendant again has only therapeutic supervised visitation with L.I.[FN4] In his emergency order to show cause (Motion Sequence No. 5), Defendant claims that Plaintiff has alienated the children against him, while Plaintiff counters that they are realistically estranged from him. The court cannot determine whether either party should have sole custody of the children until it conducts a hearing.

SUPPORT AND COUNSEL FEES

The court denies Plaintiff's motion for temporary maintenance and interim counsel fees. In their May 2016 separation agreement, each party agreed to "voluntarily forever waive and release any and all claim[s] against the other for spousal support, maintenance or alimony." Although the parties' provision that "there will be no child support payments from either party at this time" but that "any and all expenses dealing with the care of the children will be divided equally between the parties" is illegal since it fails to reference the Child Support Standards Act ["CSSA"] (see DRL § 240[1-b][h]; see also Mitchell v Mitchell, 264 AD2d 535, 538 [3rd Dept [*4]1999]), their mutual waiver of maintenance nonetheless is severable and enforceable (see Lanza v Carbone, 130 AD3d 689, 692 [2d Dept 2015], citing Christian v Christian, 42 NY2d 63, 73 [1977]). Moreover, considering the parties' respective financial circumstances, as discussed below, their waiver also is fair and reasonable (cf. Hoffer-Adou v Adou, 121 AD3d 618 [1st Dept 2014]).

Plaintiff claims that Defendant procured the separation agreement by fraud, duress and overreaching. Her Affidavit in Reply asserts that Defendant's sister-in-law, who is an attorney, drafted the agreement. Plaintiff further states that "Defendant's lawyer" emailed the agreement to Defendant, who then emailed it to Plaintiff. On April 13, 2016, Plaintiff "signed three copies" of the agreement which Defendant signed on April 21, 2016 and returned to her. She alleges that she then did not realize that Defendant had "changed multiple parts of the agreement" including the parental access schedule and "the amount of money he agreed to pay me." Although Plaintiff's Notice of Motion previously stated that "Defendant wrongfully alleged that he paid me $40,000 [FN5] ", her Affidavit in Reply contends that "the agreement I signed stated that Defendant was to pay me $60,000 . . . ."

Plaintiff's Affidavit in Reply not only conflicts with her Notice of Motion but with her pro se Verified Complaint, filed on September 25, 2017. Plaintiff's Verified Complaint asserts that on April 13, 2016, she signed and notarized a separation agreement which she printed from an email that Defendant's sister-in-law, an attorney, sent her. She states that Defendant signed and notarized the agreement one week later, on April 21, 2016. Thereafter, "the moment [she] received [it]," Plaintiff "immediately filed the agreement with the Queens County Clerk." She declares that, unbeknownst to her, "Defendant had altered the second page of the agreement." She alleges that "out of four copies" which Defendant returned to her, "the top copy was exactly the same" as the agreement that she signed but that "the second copy was switched" by Defendant and "his attorney"[FN6] "who drafted a different second page with the same first page." Plaintiff avers that "the only valid version of the separation agreement" is "signed by both parties, every page initialed by defendant, and stamped by the county clerk as received." She states that "an amendment was filed with County Clerk's Office after this deception was found." Although Plaintiff does not admit that she is the person who filed the "amendment," the inference is inescapable. Consequently, there are presently two separation agreements filed with the court: the original agreement, which Plaintiff concededly filed on May 9, 2016 ["Original Agreement"], and the version which she filed on September 21, 2017 ["Amended Agreement"]. Plaintiff attaches a copy of the Amended Agreement to her Affidavit in Reply.

Despite having been filed on September 21, 2017, the front page of the Amended Agreement is stamped "Received May 9, 2016 County Clerk." Although the front page of the [*5]Amended Agreement otherwise resembles the front page of the Original Agreement, the pages in fact are different. Indeed, the front page of the Amended Agreement appears more accurate and complete. For example, it lists the parties' marriage date as "October 13, 2007" while the Original Agreement lists it merely as "October 2006." Additionally, the Amended Agreement correctly refers to the parties' daughter as "L.I." rather than "L.A." as in the Original Agreement. Further, the Amended Agreement states that the parties have resided in Queens for 10 years, while the Original Agreement states they have resided there for 15 years. Oddly, the Amended Agreement includes Defendant's but not Plaintiff's full birthdate while the Original Agreement includes Plaintiff's but not Defendant's full birthdate. Also, Defendant's initials appear on every page of the Amended Agreement while neither party's initials appear on the Original Agreement.Although there are other differences between the Original Agreement and Amended Agreement, the primary difference is the parental access schedule. While the Original Agreement [FN7] gives each party the children for half the week and on alternate weekends, the Amended Agreement gives each party the children for half the week as well as half the weekend [FN8] .

Nevertheless, the Original Agreement and Amended Agreement are the same in several important respects. For example, both state that the parties "agree that their income has no bearing on this separation agreement;" "agree to maintain joint legal custody of their minor children;" "agree to maintain joint physical custody of the minor children;" and "agree that neither shall receive spousal support from the other." Significantly, neither agreement states that Defendant shall pay Plaintiff $60,000. Rather, both agreements specify that he pay her $40,000.

Notably, Plaintiff filed the Amended Agreement one day after filing a pro se emergency sole custody petition [FN9] alleging that Defendant had kidnapped the children, and three days after filing a family offense petition [FN10] alleging that Defendant would not return the children to her as scheduled. Coincidentally, the alleged kidnapping occurred shortly after Defendant refused to consent to transfer L.I.'s school from Queens to Manhattan [FN11] . [*6]These circumstances render the Amended Agreement suspect. That the Original Agreement appears less accurate and complete than the Amended Agreement is also suspicious, however. Without a hearing, the court cannot decide which and to what extent either agreement controls. Regardless, the fact that the Amended Agreement is substantially the same as the Original Agreement belies Plaintiff's self-serving allegation that Defendant procured the Original Agreement by fraud, duress or overreaching.

In any event, based upon "the financial circumstances of both parties," including Plaintiff's imputed income and assets, "together with all of the other circumstances of the case," the court denies Plaintiff's motion for temporary maintenance and interim counsel fees (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1990]; see Louis v Gaines, 255 AD2d 561 [2d Dept 1998] [wife "failed to demonstrate that she lacks sufficient property and income to provide for her reasonable needs" and "has sufficient assets to pay counsel fees"]; see also Saunders v Guberman, 130 AD3d 510, 511 [2d Dept 2015]; Gold v Gold, 212 AD2d 503, 503-504 [2d Dept 1995]; cf. Landau v Landau, 258 AD2d 508, 509 [2d Dept 1999]; Yarinsky v Yarinksy, 36 AD3d 1135, 1137 [3rd Dept 2007]).

Plaintiff attests in her net worth statement that she earns $27,070 per year as an optician [FN12] . She reports total monthly expenses of $5,460.33 per month, including $920 for rent "paid by mother" and $1,600 for A.A.'s school. Plaintiff further alleges that she spends $330 per month on automotive expenses for her "mother's car," for which she provides no make, model or value. She claims that she has only $300 in her checking account. She admits to owning property with no mortgage or lien in Riverhead, New York, which she acquired with her "mother's money" in 1999 for $30,000, and for which she states the current fair market value is "unknown." Plaintiff also admits being the sole owner of a business, "Leo Marketing Inc." which she acquired on January 15, 2013, and for which she lists the original price or value as "none" and offers no net worth. She denies any credit card debt but discloses a June 17, 2005 mortgage loan of $845,000 from Suntrust Mortgage Inc. to herself "Individually and as President of Modians [sic] Realty, Inc." with a monthly payment of $5,340. Plaintiff also denies transferring any assets during the last three years. Finally, Plaintiff states that she paid a $15,000 retainer and $500 consultation fee to her former attorney, Coffinas & Lusthaus [FN13] .

Defendant alleges that Plaintiff not only is the president of Modiano Realty, Inc. but [*7]the CEO of the corporation. He attaches a copy of the New York State Division of Corporations Entity Information for Modiano Realty, Inc, which lists its address as 404 East 117th Street, No.1 and the name and address of its CEO as Emily Black, 404 East 117th Street, #M. Defendant states that Plaintiff presently lives at 404 East 117th Street, and that her mother's business, Green Vision Optician, P.C., also is located there. Plaintiff's net worth statement gives her address as 404 East 117th Street, Apt #2. Defendant claims that Emily Black is a fake identity which Defendant and her mother conceived so that they could receive income from the building, which is a multi-unit premises presently worth over $3,000,000, without reporting the funds.

Defendant further alleges that Modiano Realty, Inc. owns a second building at 365 West 116th Street, where Plaintiff's mother resides and which also is worth over $3,000,000. He attaches a copy of a record from the New York City Department of Finance, Office of the City Registrar, which shows that on September 12, 2012, Plaintiff sold a two-family dwelling at 365 West 116th Street (Block 1943, Lot 109) to Pink Panda, Inc., for $800,000. Plaintiff's address at that time was 365 West 116th Street, Apt #1 and Pink Panda, Inc.'s address was 404 East 117th Street, #M - the same address as the alleged CEO of Modiano Realty, Inc., Emily Black. Finally, Defendant attaches a copy of a record from the New York City Department of Finance, Office of the City Registrar, which shows that on September 10, 2014, Pink Panda, Inc. transferred the entire lot at 365 West 116th Street to Modiano Realty, Inc. Accordingly, Defendant argues in sum that Plaintiff received an $800,000 payment for the sale of one property and that she is the president of a corporation which owns two properties worth more than $6,000,000.

Plaintiff's net worth statement is patently incredible. As Defendant notes, Plaintiff's alleged expenses of $5,460.33 per month, or $65,523.96 per year, far exceed her meager annual income. Indeed, it strains credulity that with an annual salary of $27,070 per year and $300 in a checking account [FN14] , Defendant would spend $920 per month for rent; $1,900 per month for educational expenses, including $1,600 for nursery school; and $1,018.33 per month for recreational expenses, including $600 for her children's birthday parties, yet have no credit card debt. It is even harder to believe that she would incur $15,500 in legal fees. Additionally, it is inconceivable that she would qualify, "Individually and as President" of a corporation for an $845,000 mortgage with a monthly installment of $5,340 [FN15] (see Darling v Darling, 220 AD2d 858, 859 [3rd Dept 1995]).

Moreover, the court does not accept that the current fair market value of the property which Plaintiff owns in Riverhead is "unknown" since the annual property tax assessment would contain such an estimate [FN16] . Likewise, the court rejects Plaintiff's self-serving and unsupported allegation that her 100% interest in the marketing business, Leo Marketing, Inc. is worth "$0.00."

Further, Plaintiff's declaration in her Affidavit in Reply she is "not the president or owner of any corporation" and does "not own any land" contradicts her net worth statement, in which she admits that she is the "Mortgagor" "Individually and as President of Modians [sic] Realty, Inc" of "365 West 116th Street, New York, New York" and that she is the "Titled Owner" of "13 Hillcrest Drive, Riverhead, New York." Her flippant claim that she owns "a bungalow in Riverhead" but not "the land on which [it] was built" is not only extremely unlikely but entirely unsubstantiated. Indeed, Plaintiff declines to explain the circumstances under which she owns the building but not the land beneath it [FN17] . Finally, her convenient assertion that Defendant "forged [her] name" on the deed transferring 365 West 117th Street to her from Modiano Realty, Inc. in 2010 is equally dubious and uncorroborated.

Under the totality of the circumstances, the court concludes that Plaintiff is concealing both income and assets. The court need not rely on a party's account of his or her finances, particularly where it is not credible or suspect (see Barnett v Ruotolo, 49 AD3d 640, 640-641 [2d Dept 2008]; Strella v Ferro, 42 AD3d 544, 545 [2d Dept 2007]; Westenberger v Westenberger, 23 AD3d 571 [2d Dept 2005]; see also McKenna v McKenna, 137 AD3d 1464 [3rd Dept 2016]; Yarinsky, 36 AD3d at 1137 ["notably, when a party's or an expert's account of his or her finances is not believable, a court is justified in finding an income higher than that claimed"]). Moreover, the court may impute income to a party based upon his or her expenses and lifestyle (see Khaimova v Mosheyev, 57 AD2d 737, 737-738 [2d Dept 2008]; Barnett, 49 AD2d at 641; see also Bauman v Bauman, 132 AD3d 791, 793 [2d Dept 2015]). Additionally, the court may impute income to a party based upon money received from relatives (see DRL § 240[1-b][b][5][iv][D]; see also Schorr v Schorr, 154 AD3d 621, 622 [1st Dept 2017]; Kiernan v Martin, 108 AD3d 767, 769 [2d Dept 2013]; Sotnik v Zavilyansky, 101 AD3d 1102, 1104 [2d Dept 2012]; Rossiter v Rossiter, 56 AD3d 1011, 1012 [3rd Dept 2008]; see also Ambrose v Felice, 45 AD3d 581, 583 [2d Dept 2007]) or upon a party's earning potential, including ownership of a business (see Fruchter v Fruchter, 29 AD3d 942, 943 [2d Dept 2006]) or sources other than employment (see Yarinsky, 36 AD3d at 1137).

Here, Plaintiff alleges monthly expenses which total $65,523.96 per year. She also admits that she has paid $50,000 in counsel fees [FN18] . Although Plaintiff did not include the $5,340 installment for the mortgage from Suntrust Mortgage, Inc. as a monthly expense, she avers that she obtained the loan "Individually and as President of Modians [sic] Realty, Inc." Thus, Plaintiff is liable for the mortgage. Inferably, Plaintiff did not list the mortgage installment as a monthly expense on her net worth statement because she herself does not make the payments. Indeed, Plaintiff's Affidavit in Reply states that her mother pays the mortgage for her. Her mother's payment of this expense on Plaintiff's behalf, like her payment of Plaintiff's rent, constitutes income to Plaintiff (see Schorr, 154 AD3d at 622). The cost of the mortgage installment payments over one year equals $64,080. Adding [*8]this amount to her expenses, including her counsel fees [FN19] , the court imputes a net income of $179,603.96 to Plaintiff.

Contrary to Plaintiff, Defendant appears to reveal both his income and assets in his net worth statement. Defendant indicates that in 2017 he earned $179,526.11 as the Dental Practice Manager at West Side Dental Associates. He documents total monthly expenses of $10,155, including $2,500 for rent and $1,049 to lease a Lexus, which are commensurate with his current income. He claims to own a business, "Synergy Healthcare Int'l, LTD" with a net worth of $16,948.38, which he acquired in 2010 but which has been inactive since 2016. He states that he owes $15,400 in credit card debt as well as $64,802.97 in unpaid taxes for property which he co-owns in Brewster, New York [FN20] . He also asserts that he owes $36,000 in notes payable to relatives for loans, including money for attorneys' fees. Nevertheless, he admits to owning a checking account which he opened in April 2016 with $84,137.97 from "payroll" funds. Defendant also admits to contributing $120,000 from the parties' joint savings account towards the purchase of the Brewster property. Finally, he discloses that he owes $180,000 towards his $400,000 buy-out of Rockaway Management. Defendant does not elaborate on the source of the funds for these purchases.

To determine a party's support obligations, the court must compare net income to net income, or gross income to gross income (see Lazar v Lazar, 124 AD3d 1242, 1244 [4th Dept 2015]; YW v T-TJ, 47 AD3d 538, 539 [1st Dept 2008]; see also Beroza v Hendler, 109 AD3d 498, 500 [2d Dept 2013]; Gezelter v Shoshani, 283 AD2d 455, 456 [2d Dept 2001]). Although the court may deduce Plaintiff's net income from her expenses, it cannot speculate as to her gross income. The court therefore must compare Plaintiff's net income to Defendant's net income. Subtracting federal, state and local taxes, as well as Social Security and Medicare taxes from Defendant's gross income as reported on his 2017 W-2 Wage and Tax Statement, the court computes Defendant's net income as $118,662.03. In comparison, Plaintiff's net income is $179,603.96. Consequently, the court finds Plaintiff to be the monied spouse.

To determine child support, the court must calculate the amount of the basic child support obligation by applying the statutory formula to the parents' combined income up to the statutory cap of $143,000 (see DRL § 240[1-b][b] & [c]). When the parents' combined income exceeds the statutory cap, the court must determine the amount of child support, if any, from the excess income by considering certain enumerated factors as well as any other factors which the court deems relevant (see DRL § 240[1-b][c][3]; see also Sprole v Sprole, 145 AD2d 1367, 1369 [3rd Dept 2016]). Here, the court finds it just and appropriate to apply the statutory formula to the parents' combined income capped at [*9]$143,000.

Under the CSSA, the court shall order the noncustodial parent to pay child support (see Rubin v Salla, 107 AD3d 60, 67 [1st Dept 2013]). Where the parents share physical custody, the court must identify the primary custodial parent (see id. at 68, citing Bast v Rossoff, 91 NY2d 723, 728 [1998]). Since Defendant presently has more overnight access to A.A. than Plaintiff, he is A.A.'s custodial parent (see id. at 69; Mitchell v Mitchell, 134 AD3d 1213, 1214-1215 [3rd Dept 2015]; Smith v Smith, 97 AD3d 923, 924 [3rd Dept 2012]). In contrast, since Defendant has only therapeutic supervised visitation with L.I., and because L.I. resides with Plaintiff, she is L.I.'s custodial parent. To calculate the amount of child support due for each parent, the court must calculate 17% of the parents' combined income for each child and determine each parent's obligation for the child not in his or her custody (see Ross v Manley, 135 AD3d 1104, 1106 [3rd Dept 2016]).

The basic child support obligation for each child is 17% of $143,000, or $24,310 per year [FN21] (see DRL § 240[1-b][c][2] & [b][3][i]). Plaintiff's net income of $179,603.96 plus Defendant's net income of $118,662.03 totals $298,265.99. Plaintiff's income constitutes 60% of the parties' combined net income and Defendant's net income constitutes 40% of their combined net income. Thus, Plaintiff shall pay 60%, or $14,586, and Defendant shall pay 40%, or $9,724, of the $24,310 annual support obligation for each child. Accordingly, while Defendant has primary custody of A.A., Plaintiff shall pay Defendant $1,215.50 per month, or $607.75 bi-weekly, towards A.A.'s support. Additionally, while Plaintiff has primary custody of L.I., Defendant shall pay Plaintiff $810.33 per month, or $405.16 bi-weekly, towards L.I.'s support. Consequently, offsetting one obligation against the other, while Defendant has primary custody of A.A. and Plaintiff has primary custody of L.I., Plaintiff shall pay Defendant $405.18 monthly, or $202.59 bi-weekly, towards A.A.'s support.

Should either parent obtain primary custody of both children, the parties' child support obligation would change from 17% of their combined parental income for each child to 25% for both children (see DRL § 240[1-b][b][3][ii]). Thus, their basic child support obligation for both children would be $35,750 per year. Plaintiff would pay 60%, or $21,450, and Defendant would pay 40%, or $14,300 of that amount annually for both children. Consequently, Plaintiff's support obligation would be $1,787.50 per month, or $893.75 bi-weekly, and Defendant's support obligation would be $1,191.66 per month, or $595.83 bi-weekly, towards the children's support. The non-custodial parent would pay his or her share of child support to the custodial parent.

The court denies any application not specifically addressed herein.

The foregoing constitutes the decision and order of this Court.

Dated: March 20, 2018

Kew Gardens, New York

______________________________

Hon. Elisa S. Koenderman, ASCJ Footnotes

Footnote 1:An email exchange between the parties, which Plaintiff subsequently submitted to the court, indicates that on September 11, 2017, Defendant refused to consent to transfer L.I. from P.S. 196 in Queens.

Footnote 2:Additionally, on November 27, 2017, the Appellate Division, Second Department denied leave to appeal and dismissed Plaintiff's appeal of the school transfer order.

Footnote 3:The misdemeanor complaint alleges that on September 15, 2017, September 21, 2017, and September 28, 2017, Defendant locked L.I. overnight in a bedroom and refused to let her out to use the bathroom so that she "was forced to go to the bathroom inside of the bedroom." The complaint also alleges that Defendant struck A.A. on the head with his hand, causing him to fall. Criminal court issued temporary orders of protection subject to subsequent visitation or custody orders for both children against Defendant. Additionally, the Administration for Children's Services ["ACS"] conducted a child protective investigation against Defendant. Despite finding against him for inadequate guardianship and excessive corporal punishment, however, ACS did not charge Defendant with neglect. His criminal case is pending trial.

Footnote 4:Notwithstanding, Defendant continues to have expanded overnight access to A.A. pursuant to the December 20, 2017 order.

Footnote 5:Defendant alleges that he paid Plaintiff $40,000 as agreed. He attaches a copy of his March 1, 2016- March 31, 2016 Chase Bank statement, showing a $20,000 check paid on March 1, 2016; his August 25, 2016 — September 27, 2016 Chase Bank Statement, showing a $10,000 check paid on August 29, 2016; and his December 28, 2016 — January 27, 2017 Chase Bank statement, showing a $10,000 check paid on January 3, 2017. He does not attach copies of the cancelled checks, however.

Footnote 6:Although Plaintiff's Verified Complaint and Affidavit in Reply loosely refer to Defendant's sister-in-law as Defendant's "attorney" or "lawyer," apart from Plaintiff's self-serving allegation, there is no evidence that Defendant's sister-in-law in fact represented Defendant as counsel when the parties executed their separation agreement.

Footnote 7:The Original Agreement states that "[E.I.] will have physical custody of both children all day Monday, all day Tuesday, and until 3 p.m. on Wednesday. [Y.A.] will have physical custody of both children on Wednesday after 3 p.m., all day Thursday, all day Friday[.] Saturday and Sunday weekends will be alternating between both parties."

Footnote 8:The Amended Agreement states that "[E.I.] will have physical custody of both children on Saturday after 8 p.m., all day Sunday, all day Monday, all day Tuesday and until 3 p.m. on Wednesday. [Y.A.] will have physical custody of both children on Wednesday after 3 p.m., all day Thursday, all day Friday, Saturday until 8 p.m."

Footnote 9: The emergency sole custody petition, filed on September 20, 2017, alleges that Defendant "physically kidnapped both of [Plaintiff's] children [and] would not reveal their whereabouts until [she] was forced to call" the police.

Footnote 10:The family offense petition, filed on September 18, 2017, alleges that at 12:00 p.m. on Saturday, September 16, 2017, Plaintiff "was supposed to pick up [her] children as had been done for 2 years routinely but [Defendant] refused to give them to me."

Footnote 11:Plaintiff's proffered reasons requiring L.I.'s school transfer have changed repeatedly. In the previously referenced email exchange between the parties, Plaintiff stated that she wanted L.I. "to go to a good school in Manhattan" and that "there are no good middle schools in Queens." Thereafter, Plaintiff asserted in court through prior counsel that L.I. needed to transfer from her Queens school because she was being bullied and had no friends there. Most recently, Plaintiff has contended that L.I. had to attend school in Manhattan because A.A. was enrolled in daycare there and it was a hardship to have the children in different boroughs.

Footnote 12:Plaintiff's Verified Complaint admits that she "graduated Fordham University and worked as a Purchase Specialist and Mortgage Broker in the banking industry receiving a high salary and commissions." Her attached 2009 W-2 Wage and Tax Statement reflects gross wages of $90,620.90. In determining maintenance or child support obligations, a court may impute income based upon past earnings or demonstrated earning capacity (see Rocanello v Rocanello, 254 AD2d 369 [2d Dept 1998]).

Footnote 13:This represents the fees to Plaintiff's former attorney, Coffinas & Lusthaus. Plaintiff has substituted counsel twice since filing this action. After previously discharging Deborah Fiss, Esq., on October 31, 2017 Plaintiff executed a consent to change attorney to Maria Coffinas, Esq. Thereafter, on December 28, 2017, she executed a consent to change attorney to Warren S. Hoffman, Esq. of Hoffman & Behar, PLLC.

Footnote 14:That Plaintiff now has only $300 in a checking account after allegedly receiving $800,000 for a property sale in 2012 invites explanation.

Footnote 15:Notably, Plaintiff fails to include the monthly mortgage payment in her list of expenses.

Footnote 16:Plaintiff also neglects to include the annual property tax payment for the Riverhead property in her list of expenses.

Footnote 17:Regardless, even if Plaintiff were renting the land, for example, she should have included that as an expense on her net worth statement.

Footnote 18:Plaintiff's Affidavit in Reply states that she paid "a total of $30,000" to her former attorney, Maria Coffinas, Esq., as well as a $20,000 retainer to her current attorney Warren S. Hoffman, Esq.

Footnote 19:While Plaintiff's Notice of Motion contends that she paid her then-attorney's $15,000 retainer with "funds she borrowed from [her] mother" which she is "obligated to re-pay," she did not disclose any notes payable on her net worth statement. Accordingly, the court disregards Plaintiff's cursory claim and instead imputes the money as income to her.

Footnote 20:Although Defendant admits that he paid $450,000 for the property in January 2015, he denies knowing its current fair market value. He explains that he has paid $5,000, with $49,000 due, to demolish the structure which he estimates will cost $350,000-$400,000 to rebuild. He does not provide an estimate of the fair market value of the land, however, which the property tax assessment would contain.

Footnote 21:The total child support obligation for both children, therefore, is $48,620.