Jeffrey S. Schecter & Associates P.C.

May a parent be directed to maintain life insurance in a Family Court support proceeding? Do an aunt and uncle awarded primary residential and, with the father, joint legal custody of his children, share responsibility for the children’s health and education expenses? Such were the questions addressed by the Appellate Division, Second Department, in its September 12, 2018 decision in Lozaldo v. Cristando.

Following the death of the children’s mother, the maternal aunt and uncle were awarded residential custody of the children and shared joint legal custody with the father. The aunt and uncle commenced this proceeding for child support from the father. After a hearing, Nassau County Family Court Support Magistrate Patricia Bannon entered a support order which, inter alia, required the father to pay 100% of the children’s unreimbursed medical and educational expenses, and to maintain a life insurance policy in the sum of $1,000,000, designating the children as irrevocable primary beneficiaries. The father objected to these provisions of the order of support. Family Court Judge Conrad D. Singer denied his objections. The father appealed.

The Second Department agreed with requiring the father to pay 100% of the children’s medical and educational expenses. There was no basis to find the maternal aunt and uncle liable for a portion of such expenses.

Continue Reading Family Court-Mandated Life Insurance | Non-Parent Liability for Health and Education Expenses

In his August 25, 2015 decision in Zeidman v. Zeidman, Nassau County District Court Judge Scott Fairgrieve awarded $5,000 to 17-year old Jordan Zeidman who had sued his mother, Shirley Zeidman, for refusing to deliver Jordan’s Bar Mitzvah gift from his maternal grandmother that had been entrusted to his mother.

In 1998, Jordan’s parents were divorced. In their separation agreement, the parents stipulated that they would contribute pro rata to Jordan’s college fund. The mother had not made any such contributions and, in October, 2007, Jordan moved from his mother’s home because of their uneasy relationship. Mother and son had been estranged ever since.

Also in October, 2007, Jordan and his family celebrated his Bar Mitzvah at Zachary’s restaurant in Hempstead. Neither Jordan’s mother, nor his grandmother received an invitation to the party. The two “crashed” the party, but were not asked to leave.

Jordan claimed that at the celebration, his grandmother told him that she was going to give him $5,000 for his religious achievement. The grandmother supposedly gave the $5,000 to Jordan’s mother with the understanding that it would be delivered to Jordan. According to Jordan, his grandmother told him “I have $5,000 for you. Just like I gave to your brother and sister. And I’m going to give it to your mom to hold for you.” Jordan testified his mother never delivered the $5,000 to him.

At trial, Jordan submitted into evidence a document given to him by his father, ostensibly showing that his mother had acknowledged and received Jordan’s plaintiff’s $5,000 gift. The document was a bank confirmation statement of deposits that were made into Jordan’s college fund. The top of the document contained a handwritten statement which read, “I owe Jordan $190.00 + $5,000 from Baba” [the nickname by which the family referred to the grandmother].

On cross-examination, the mother testified that she didn’t recall writing the note, but that it could have been her handwriting. She denied receiving a $5,000 gift from her mother for Jordan’s benefit. Jordan testified that he was familiar with his mother’s handwriting because of the amount of time they spent living together, and the number of times he had seen her make numerous other writings.

The grandmother testified that she neither gave a $5,000 gift directly to Jordan, nor did she give the mother $5,000 to hold for Jordan’s benefit. However, the grandmother admitted to giving $5,000 gifts, in either cash or check form, to Jordan’s siblings for their Bar and Bat Mitzvahs.

Judge Fairgrieve found that Jordan had proven by clear and convincing evidence the elements necessary to establish an inter vivos gift:

  1. donative intent to make an irrevocable transfer of ownership;
  2. actual physical or constructive delivery of the property; and
  3. acceptance of the gift by the donee.

The evidence clearly established that Jordan’s grandmother came to his Bar Mitzvah with the intention of giving Jordan a $5,000 gift. The grandmother gave direct testimony attesting to the fact that she went to the plaintiff’s Bar Mitzvah, uninvited, with the intent to give him a gift with “all of her heart.” The grandmother had given $5,000 gifts to Jordan’s older siblings for their Bar and Bat Mitzvahs in the past. The bank document further supported that a gift was made. That evidence, coupled with the fact that Jordan and the grandmother shared a family relationship, convinced Judge Fairgrieve that the grandmother came to the Bar Mitzvah with the intention of giving the plaintiff a $5,000 gift. The evidence also demonstrated an irrevocable transfer of ownership: the mother received delivery of $5,000 as agent for Jordan in a fiduciary capacity.

Further, Jordan established by clear and convincing evidence that he received constructive delivery of the $5,000 gift. Delivery may be made to someone other than the donee to accomplish a gift. That third party represents the donee as agent, and there may be a valid delivery, even in circumstances where the donee does not have knowledge of the gift.

Here, there was valid delivery of the $5,000 gift made to Jordan. The mother was acting as agent for Jordan when she retained the gift. Moreover, the handwriting on the banking confirmation statement proved that the mother received the $5,000 gift as Jordan’s fiduciary-agent.

An agent who exercises dominion or control over the property “of his or her principal beyond the extent of the agent’s authority, with the intent to dispose of it so as to alter its condition or interference with the owner’s dominion is guilty of conversion.” Fundamental to an agent-principal relationship is that an agent owes a duty of loyalty to his or her principal, and is “prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.” Thus, Jordan was entitled to recover based upon conversion because the mother failed to pay him the $5,000 to which he was entitled.

Moreover, Jordan was entitled to recover for unjust enrichment. The elements necessary to establish a cause of action for unjust enrichment are:

  1. the other party was enriched;
  2. at that party’s expense; and
  3. that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.

Here, the evidence demonstrated that the mother would be unjustly enriched if permitted to retain the $5,000 gift.

Steven Cohn, P.C., of Carle Place, represented the son. Jeffrey S. Schecter & Associates, P.C., of Garden City, represented the mother.

In a 3-1 decision on February 4, 2015 in Cohen v. Cohen, the Second Department disqualified a prominent Long Island matrimonial firm from representing the wife in this 2011 divorce action.

It was disputed whether in November 2010 the husband had consulted Steven J. Eisman, senior partner in Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP. The husband was unable to substantiate his allegation that he consulted with Mr. Eisman. Mr. Eisman stated that while the husband had scheduled an appointment for a consultation, he canceled it. Mr. Eisman further asserted that the husband had consulted with various top matrimonial attorneys in the area to prevent the wife from hiring an attorney.

However, it was not disputed that the husband’s brother met with Mr. Eisman in July, 2010. The brother stated that he had shared with Mr. Eisman confidential information concerning various businesses the husband and his brother owned and in which they shared common interests. This included detailed information concerning the day-to-day operations of the businesses which he operated jointly with the husband, illustrated by a diagram, described how the businesses earned a profit, and provided his opinion as to the value of the businesses. Mr. Eisman acknowledged that he had discussed with the husband’s brother “surface details” concerning, among other things, the husband’s brother’s employment, the brother’s marriage, residence, and children.

The brother (and obviously the husband) never retained the law firm as his counsel. The wife did. The husband moved to disqualify Mr. Eisman’s firm.

The Second Department first noted that the disqualification of an attorney is generally a matter resting within the sound discretion of the court. In his ruling below, Supreme Court Justice Norman Janowitz had denied that motion.

Nonetheless, the Second Department reversed, noting “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety.” The appellate court held that here, Justice Janowitz should have granted the husband’s motion to disqualify the law firm. Given the undisputed evidence of the consultation between Mr. Eisman and the husband’s brother, as well as the nature of the matters disclosed there was a resulting substantial risk of prejudice.

The very appearance of a conflict of interest was alone sufficient to warrant disqualification of the law firm as a matter of law without an evidentiary hearing, and notwithstanding the existence of a factual dispute as to whether Eisman met with the [husband].

Continue Reading Disqualification of Counsel: Is It A Shield Or A Sword?