Justice James F. Quinn

The prospective husband’s attorney who drafted a couple’s prenuptial agreement was not disqualified from representing the husband in the couple’s divorce action, nor in the action to set aside the prenuptial agreement that had been joined for trial. So held the Appellate Division, Second Department, in its August 15, 2018 decision in Lombardi v. Lombardi. Moreover, it was held that an interim award of counsel fees to the wife was improper.

In 2004 the parties entered into a prenuptial agreement setting forth their rights and obligations in the event of a divorce. The wife commenced this action for a divorce in 2011.

Approximately one year later, the wife commenced a separate action to set aside the prenuptial agreement on the grounds of duress, coercion, undue influence, and unconscionability, and to recover damages for legal malpractice against the husband’s attorney, Dorothy Courten, who had drafted the prenuptial agreement on the husband’s behalf.

On a prior motion, Supreme Court, Suffolk County, Justice Hector D. LaSalle granted the husband’s motion to dismiss the complaint in the second action. On appeal, the Second Department modified that order by denying those branches of the motion which were to dismiss the causes of action alleging fraudulent inducement against the husband and seeking to set aside or rescind the prenuptial agreement on the basis of duress, coercion, undue influence, and unconscionability (see, Lombardi v. Lombardi, 127 A.D.3d 1038, 7 N.Y.S.3d 447 [2015]). However, the award of summary judgment dismissing the complaint insofar as asserted against Ms. Courten was affirmed.

Thereafter, the wife moved to consolidate this divorce action with the second action, to disqualify Ms. Courten and her law firm from representing the husband, and for an award of interim counsel fees. Justice James F. Quinn joined the two actions for trial, disqualified Ms. Courten and her law firm from representing the husband, and awarded the wife $10,000 interim counsel fees.


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In its October 30, 2014 decision in Hoffer-Adou v. Adou, the Appellate Division, First Department, affirmed the granting of summary judgment awarding a no-fault divorce solely upon the plaintiff’s (here the wife) sworn statement. That award had been made below by Supreme Court, New York County Justice Deborah A. Kaplan.

In so holding the First Department joined the Fourth Department in holding that whether there has been an irretrievable breakdown is purely subjective. In a decision issued November 9, 2012 in Palermo v. Palermo, the Fourth Department (December 13, 2012 blog post) had affirmed a decision of Monroe County Supreme Court Justice Richard A. Dollinger (January 30, 2012 blog post) for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.

The First Department, here, held:

Contrary to the husband’s contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law.

However, as noted in prior blog posts, the subject has not been without debate. Two decisions of the Nassau County Supreme Court, Townes v. Coker (relied upon by the First Department and discussed in the blog post of February, 20, 2012), and A.C. v. D.R. (discussed in the April 4, 2011 post), both held that New York’s new no-fault ground was purely subjective.


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Update: In a decision issued November 9, 2012, the Appellate Division, Fourth Department, affirmed the October 28, 2011 decision of Monroe County Supreme Court Justice Richard A. Dollinger for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.


Original January 30, 2012 entry:

gavel 1 small.jpgGloria Sorrentino, 79 years old, was compelled to endure a three-day trial to obtain her “no-fault divorce”;  and that trial was only conducted after Mrs. Sorrentino had been subjected to an inquiry as to her competency and her freedom from duress from two of her children. Acting Suffolk Supreme Court Justice James F. Quinn, in his January 12, 2012 decision in Sorrentino v. Sorrentino, declared the continuing need of a family to go through the tragedy of a divorce grounds trial despite the October, 2010 adoption of New York’s no-fault statute.

To establish her irretrievable breakdown grounds, Mrs. Sorrentino testified to the years of the lack of a relationship with her husband of 56 years. That testimony was corroborated by the detailed testimony of two of the parties’ children.

Justice Quinn ruled that this detailed and corroborated testimony, alone, was not a sufficient basis upon which a court could grant a divorce on the grounds of irretrievable breakdown. Mr. Sorrentino was entitled to challenge his wife’s case and provide his defense.

Justice Quinn held that not only was Mrs. Sorrentino required to demonstrate why she believed her marriage had broken down irretrievably, but also that the court was entitled, or rather required to reach the same conclusion objectively on the basis of all of the evidence presented. Only the court and not the parties, no less only one of the parties, was entitled to decide when a marriage had irretrievably broken down.


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