| Maybaum v Maybaum |
| 2011 NY Slip Op 07816 [89 AD3d 692] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Simon Maybaum, Respondent-Appellant, v NadineMaybaum, Appellant-Respondent. |
—[*1] Most & Kusnetz, LLC, White Plains, N.Y. (Marcia E. Kusnetz of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), enteredDecember 1, 2010, as denied that branch of her motion which was to direct the plaintiff to makepayments to a certain school, denied those branches of her cross motion which were pursuant toCPLR 3211 (b) to dismiss the first, third, and fourth affirmative defenses asserted in theplaintiff's reply to her counterclaim, and pursuant to the Rules of the Chief Administrator of theCourts (22 NYCRR) § 130-1.1 to impose sanctions on the plaintiff and/or the plaintiff'sattorney, and granted those branches of the plaintiff's motion which were to strike statedparagraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, andequitable estoppel, to strike stated paragraphs of the defendant's counterclaim, in effect, astime-barred, and pursuant to CPLR 3016 (c) to strike stated paragraphs of the defendantscounterclaim for lack of specificity, and thereupon directed her to serve and file an amendedcounterclaim, and the plaintiff cross-appeals, as limited by his notice of appeal and brief, from somuch of the same order as denied those branches of his motion which were to hold the defendantin civil contempt for her failure to provide an accurate statement of net worth, pursuant to theRules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 to imposesanctions on the defendant and/or the defendant's attorney, and pursuant to CPLR 3126 topreclude the defendant from contesting the imputation of income to her.
Ordered that the order is modified, on the law, the facts, and in the exercise of discretion, (1)by deleting the provisions thereof granting those branches of the plaintiff's motion which were tostrike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateralestoppel, and equitable estoppel, to strike stated paragraphs of the defendant's counterclaim, ineffect, as time-barred, and to strike stated paragraphs of the defendant's counterclaim for lack ofspecificity, and thereupon directing the defendant to serve and file an amended counterclaim, andsubstituting therefor a provision denying those branches of the motion and vacating thatdirective, (2) by deleting the provision thereof denying that branch of the defendant's motionwhich was to direct the plaintiff to make payments to a certain school, and substituting therefor aprovision granting that branch of the motion, pendente lite, and (3) by deleting the provisionthereof denying those branches of the defendant's cross motion which were pursuant [*2]to CPLR 3211 (b) to dismiss the third and fourth affirmativedefenses asserted in the plaintiff's reply to the defendant's counterclaim, and substituting therefora provision granting those branches of the defendant's cross motion; as so modified, the order isaffirmed insofar as appealed and cross-appealed from, without costs or disbursements, and thematter is remitted to the Supreme Court, Westchester County, for a determination of theoutstanding issues with all deliberate speed.
The defendant wife and the plaintiff husband were married on March 13, 1995. Two childrenwere born of the marriage.
In April 2010, the defendant commenced a proceeding pursuant to article 8 of the FamilyCourt Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiffcommenced this action for a divorce and ancillary relief on the ground of cruel and inhumantreatment. On April 27, 2010, the parties appeared before the Family Court, Westchester County,and entered into a stipulation on the record. In effect, the parties stipulated that the defendant waswithdrawing the pending family offense petition, with prejudice, in exchange for the plaintiffgiving the defendant exclusive use of the marital residence. The parties agreed that the stipulationwas binding in the action for a divorce pending in the Supreme Court.
Subsequently, the defendant answered the complaint in this action and asserted acounterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. Inreply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that thedefendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016 (c),and, as a fourth affirmative defense, that the counterclaim was barred, in whole or in part, by thedoctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulationbetween the parties.
The parties made several motions and cross motions for relief. The Supreme Court, inter alia,denied that branch of the defendant's motion which was to direct the plaintiff to make paymentsto a certain school, denied those branches of the defendant's cross motion which were pursuant toCPLR 3211 (b) to dismiss the first, third, and fourth affirmative defenses asserted in theplaintiff's reply to her counterclaim, and pursuant to the Rules of the Chief Administrator of theCourts (22 NYCRR) § 130-1.1 to impose sanctions on the plaintiff and/or the plaintiff'sattorney, and granted those branches of the plaintiff's motion which were to strike statedparagraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, andequitable estoppel, to strike stated paragraphs of the defendant's counterclaim, in effect, astime-barred, and to strike stated paragraphs of her counterclaim for lack of specificity, andthereupon directed her to file an amended counterclaim. In addition, the Supreme Court, interalia, denied those branches of the plaintiff's motion which were to hold the defendant in civilcontempt for her failure to provide an accurate statement of net worth, pursuant to the Rules ofthe Chief Administrator of the Courts (22 NYCRR) § 130-1.1 to impose sanctions on thedefendant and/or the defendant's attorney, and pursuant to CPLR 3126 to preclude the defendantfrom contesting the imputation of income to her. The defendant appeals and the plaintiffcross-appeals. We modify.
The Supreme Court erred in granting that branch of the plaintiff's motion which was to strikestated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateralestoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce onthe ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offensepetition, did not arise out of the same transaction or series of transactions. "It is not always clearwhether particular claims are part of the same transaction for res judicata purposes. A 'pragmatic'test has been applied to make this determination—analyzing 'whether the facts are relatedin time, space, origin, or motivation, whether they form a convenient trial unit, and whether theirtreatment as a unit conforms to the parties' expectations or business understanding or usage' " (Xiao Yang Chen v Fischer, 6 NY3d94, 100-101 [2005], quoting Restatement [Second] of Judgments § 24 [2]; seeSmith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981]). Applying this test, we concludethat the family offense petition and counterclaim for a divorce on the ground of cruel andinhuman treatment do not form a convenient trial unit. Thus, the defendant is not precluded fromlitigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in theseparate action in the Supreme Court.[*3]
"Collateral estoppel, or issue preclusion, 'precludes aparty from relitigating in a subsequent action or proceeding an issue clearly raised in a prioraction or proceeding and decided against that party . . . , whether or not the tribunalsor causes of action are the same' " (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343,349 [1999], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "Thedoctrine applies if the issue in the second action is identical to an issue which was raised,necessarily decided and material in the first action, and the plaintiff had a full and fairopportunity to litigate the issue in the earlier action" (Parker v Blauvelt Volunteer FireCo., 93 NY2d at 349). "[C]ollateral estoppel effect will only be given to matters actuallylitigated and determined in a prior action" (Kaufman v Eli Lilly & Co., 65 NY2d 449,456 [1985] [internal quotation marks omitted]). "An issue is not actually litigated if, for example,there has been a default, a confession of liability, a failure to place a matter in issue by properpleading or even because of a stipulation" (id. at 456-457). Here, the issue of whether theplaintiff committed certain acts against the defendant was never determined in the Family Courtproceeding, and the defendant's participation in the stipulation to withdraw her family offensepetition, with prejudice, cannot be construed to be the kind of determination following a full andfair opportunity to litigate the issues that would be necessary to collaterally estop the defendantfrom establishing that the plaintiff committed the alleged acts (see North Shore-Long Is. Jewish HealthSys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440-441 [2006]; SingletonMgt. v Compere, 243 AD2d 213, 216-218 [1998]).
Further, "[t]he circumstances set forth by plaintiff simply do not rise to a level ofunconscionability warranting application of equitable estoppel" (American Bartenders Schoolv 105 Madison Co., 59 NY2d 716, 718 [1983]; see Geller v Reuben Gittelman Hebrew Day School, 34 AD3d 730,731-732 [2006]).
Since the doctrines of res judicata, collateral estoppel, and equitable estoppel do not precludethe defendant from litigating certain of the allegations in her counterclaim that were alleged inher family offense petition, the Supreme Court should have granted that branch of the defendant'scross motion which was pursuant to CPLR 3211 (b) to dismiss the plaintiff's fourth affirmativedefense alleging that the defendant's counterclaim was barred in whole or in part by the doctrinesof res judicata, collateral estoppel, and equitable estoppel, as that defense has no merit.
The Supreme Court further erred in granting that branch of the plaintiff's motion which wasto strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the groundthey alleged acts occurring more than five years prior to the commencement of the action. Theallegations in the counterclaim relating to incidents occurring more than five years before thecommencement of the action may be properly included to the extent that those allegations may berelevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhumantreatment in the context of the entire marriage (see Vestal v Vestal, 273 AD2d 461, 462[2000]; Miglio v Miglio, 147 AD2d 460, 460-461 [1989]). Further, the Supreme Courterred in granting that branch of the plaintiff's motion which was pursuant to CPLR 3016 (c) tostrike stated paragraphs in the counterclaim for lack of specificity and thereupon directing thedefendant to serve and file an amended counterclaim. The "allegations sufficiently apprised the[plaintiff] of the accusations against him so as to enable him to prepare a defense" (Nolletti v Nolletti, 2 AD3d 421,422 [2003]; see Kapchan v Kapchan, 104 AD2d 358 [1984]; Pfeil v Pfeil, 100AD2d 725 [1984]). Therefore, the Supreme Court also should have granted that branch of thedefendant's cross motion which was pursuant to CPLR 3211 (b) to dismiss the plaintiff's thirdaffirmative defense alleging that the counterclaim was insufficiently specific to meet therequirements of CPLR 3016 (c).
The Supreme Court should have granted that branch of the defendant's motion which was todirect the plaintiff to make payments to a certain school, pendente lite. The parties' older childhad attended the Solomon Schechter School of Westchester (hereinafter the Schechter School). Aprior order of the Supreme Court provided, in part, that "[a]ll fees for agreed upon summer camp,agreed upon private grade school tuition, necessary child care shall be borne 60% Plaintiff and40% Defendant." Although the parties dispute whether there was an agreement as to their olderchild's education for the 2010-2011 academic year, the record is clear that the child hadpreviously attended the Schechter School. Pursuant to Domestic Relations Law § 240 (1-b)(c) (7), the court may direct a parent to contribute to a child's education, even in the absence ofspecial circumstances or a [*4]voluntary agreement of the parties(see Matter of Paccione v Paccione,57 AD3d 900, 903 [2008]; Matterof Holliday v Holliday, 35 AD3d 468, 469 [2006]). "In determining whether to awardeducational expenses, the court must consider the circumstances of the case, the circumstances ofthe respective parties, the best interests of the children, and the requirements of justice"(Matter of Holliday v Holliday, 35 AD3d at 469 [internal quotation marks omitted]).Considering those factors, under the circumstances presented here, the Supreme Court shouldhave directed, pendente lite, that the plaintiff contribute 60% of the parties' older child's tuitioncosts at the Schechter School for the 2010-2011 academic year.
The Supreme Court did not improvidently exercise its discretion in denying that branch ofthe defendant's cross motion which was to impose sanctions on the plaintiff and/or his attorney,because the defendant failed to demonstrate that the conduct at issue was frivolous within themeaning of Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (see Matter of Wieser v Wieser, 83AD3d 950 [2011]; Kaplon-BeloAssoc., Inc. v D'Angelo, 79 AD3d 931 [2010]).
The Supreme Court properly denied that branch of the plaintiff's motion which was to holdthe defendant in civil contempt for her failure to provide an accurate statement of net worth, asthe plaintiff did not meet his burden of proof (see Katz v Katz, 73 AD3d 1134 [2010]; Rupp-Elmasri vElmasri, 305 AD2d 394, 395 [2003]). Further, the Supreme Court did not improvidentlyexercise its discretion in denying that branch of the plaintiff's motion which was to imposesanctions on the defendant and/or her attorney, because the plaintiff failed to demonstrate that theconduct at issue was frivolous within the meaning of Rules of the Chief Administrator of theCourts (22 NYCRR) § 130-1.1 (see Matter of Wieser v Wieser, 83 AD3d 950 [2011]; Kaplon-Belo Assoc., Inc. v D'Angelo,79 AD3d 931 [2010]). In addition, the Supreme Court properly denied that branch of theplaintiff's motion which was pursuant to CPLR 3126 to preclude the defendant from contestingthe imputation of income to her. The plaintiff failed to show that the defendant "refuse[d] to obeyan order for disclosure or wilfully fail[ed] to disclose information which the court finds ought tohave been disclosed pursuant to this article" (CPLR 3126; see Donskoi v Donskoi, 38 AD3d 708, 709 [2007]).
Given the limited scope of the plaintiff's notice of cross appeal, his contention concerning theSupreme Court's denial of that branch of his motion which was pursuant to CPLR 3211 (a) (7) todismiss the defendant's counterclaim is not properly before this Court (see CPLR 5515[1]; Hatem v Hatem, 83 AD3d663, 664 [2011]; Schwint v BankSt. Commons, LLC, 74 AD3d 1312, 1314 [2010]; Southwell v Middleton, 67 AD3d 666, 670 [2009]).
The parties' remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal andHall, JJ., concur.