| Fabrikant v Fabrikant |
| 2009 NY Slip Op 04105 [62 AD3d 585] |
| May 26, 2009 |
| Appellate Division, First Department |
| Amy Fabrikant, Respondent, v Jay A. Fabrikant,Appellant. |
—[*1] Bernard G. Post LLP, New York (William S. Hochenberg of counsel), forrespondent.
Judgment of divorce, Supreme Court, New York County (Saralee Evans, J.), enteredDecember 12, 2007, which, to the extent appealed from as limited by the briefs, confirmed thefindings of the special referee imputing annual income of $750,000 to defendant, unanimouslyaffirmed, without costs.
The court properly confirmed the special referee's report, where, as here, it was supported bythe record (see Merchants Bank of N.Y.v Dajoy Diamonds, 5 AD3d 167 [2004]; Poster v Poster, 4 AD3d 145 [2004], lv denied 3 NY3d605 [2004]). The special referee relied on the uncontested, substantial earnings history ofdefendant (see Unger v Unger, 256 AD2d 220 [1998]; see also Nebons v Nebons, 26 AD3d478 [2006]). The special referee also properly relied on the compelling testimony of theindependent forensic accountant, who found that numerous companies with which defendant wasaffiliated or of which he was the sole owner were used to pay defendant's personal expenses or to"repay" "loans" allegedly made by him to the companies, for which there was no documentation.These companies, with cash flows that were not reflected on their income tax returns and havingno apparent business purpose, reflected defendant's deliberate effort to reduce his apparentincome thereby avoiding his obligations to plaintiff and his children (see Cohen vCohen, 294 AD2d 184 [2002]; Wildenstein v Wildenstein, 251 AD2d 189 [1998]).The special referee also properly relied on the pattern of substantial gifts to defendant from hisfather to impute income to defendant (see Rostropovich v Guerrand-Hermes, 18 AD3d 211 [2005];Lapkin v Lapkin, 208 AD2d 474 [1994]). While it is uncontested that defendant suffersfrom injuries incurred in a skiing accident, as well as other ailments, defendant's testimony thathe was unable to work due to these injuries is unsupported by any medical evidence (seeDavis v Davis, 175 AD2d 45, 47-48 [1991]; see also Matter of Castillo v Castillo, 23 AD3d 653, 654 [2005]),and is contradicted by defendant's own testimony about his traveling on business at a time whenhe was purportedly unable to travel or work and about his minimal requirements forwork—a laptop and a telephone. The special referee properly rejected the testimony ofdefendant and his father, both convicted felons, that nearly $3 million provided to defendant byhis father, unsupported by documentation except a promissory note prepared two days before thecommencement of the hearing, was loans and not gifts. Also, to the extent defendant attempts toargue that his felony conviction caused a reduction in his [*2]earning capacity, the reduction was self-imposed and did notwarrant a reduction in defendant's obligations to his former wife and his children (see Matterof Knights v Knights, 71 NY2d 865, 866-867 [1988]; Matter of Commissioner of SocialServs. v Darryl B., 306 AD2d 54 [2003]). Defendant's arguments regarding inconsistenciesin the special referee's report are unpersuasive, and his assertions that the forensic accountantlacked sufficient documentation to make conclusions about defendant's various companies isbelied by the record. Moreover, to the extent the accountant lacked such documentation it wasdue to defendant's failure to provide it, and his assertions to the contrary are not credible.
Motion seeking leave to dismiss appeal denied.
Concur—Friedman, J.P., Sweeny, Nardelli, Acosta and Richter, JJ.