Published case results
In the Matter of Dorf v. Alvalle, 76 A.D.3d 629, 905 N.Y.S.2d 911 (2010).
Result: Family Court order of contempt which directed that the mother of child be incarcerated for her alleged failure to provide visitation to father was reversed on appeal. No change in the parties’ existing custodial arrangements; mother continued to have sole residential custody of the subject child.
Summary: Prior to being retained on behalf of client (mother of subject child), attorney for father of child and attorney for child both filed petition seeking contempt of prior Family Court order against child’s mother.Both petitions alleged that the child’s mother had willfully failed to abide by the terms of the existing Family Court order which included parenting time for the child’s father and a directive regarding the use of a parenting coordinator.
While represented by prior counsel, and fearing a total loss of custody, the child’s mother had entered into an admission in response to the prior content petition filed by the child’s father and had received a suspended thirty (30) day sentence of incarceration from Family Court. The more recent contempt petitions were filed by opposing counsel and the attorney for the child with just a few days remaining on the client suspended sense of incarceration.A detailed and extended contempt hearing was held before the Family Court judge. The parenting coordinator appeared as a witness for the child’s father an attorney for the child. The trial court found that the child’s mother was in willful contempt of the prior order and imposed a ten (10) day sentence of incarceration.
Mr. Kusnetz quickly filed an appeal with the Appellate Division, Second Department and received immediate stay incarceration on behalf of his client. Mr. Kusnetz secured his client’s release from jail and personally escorted his client from the facility, thereby reuniting mother and child.Once the final papers were decided by the Second Department, the trial court’s finding of willful contempt was successfully reversed on appeal. Mr. Kusnetz is particularly pleased with this favorable result.
Holding: The Appellate Division, Second Department held that the evidence at the hearing before the trial court did not establish, beyond a reasonable doubt, that the mother willfully violated the prior order by depriving the father certain visitation time with the parties’ child. Accordingly, the Family Court erred in holding the mother in contempt and directing that she be incarcerated.
Importance: This case is particularly noteworthy, since the appellate courts do not lightly overturn the findings of the trial courts. Moreover, the court system overall is designed to provide resolution and closure for parties and litigants. Thus, the appellate courts will generally defer to the findings of the lower courts except in particularly egregious situations. The decisions of the trial courts are typically based upon the actual testimony of the parties themselves and witnesses called by their respective attorneys, combined with the trier of fact’s personal assessments of individual credibility and other subjective criteria. Most decisions at the appellate level are made upon papers, transcripts, and document submissions alone.
Therefore, the attorney’s individual skill in drafting papers and rhetorical argument is particularly crucial. This case again confirms that Mr. Kusnetz’s ongoing client dedication combined with aggressive advocacy will continue to persevere in the most challenging scenarios.
Fredericks v. Fredericks, 85 A.D.3d 1107, 927 N.Y.S.3d 109 (2011).
Result: Trial court’s award of retroactive child support to opponents was significantly reduced (approximately 50%) by Appellate Division.
Summary: The parties in a matrimonial action resolved their matter by a stipulation of settlement which was placed on the record in open court. Certain issues, including attorney fees and retroactive child support were reserved for post judgment submission.
The client, who was not satisfied with the trial court’s determination on the issues contained in the post-judgment submission, appealed. The Appellate Division held in the client’s favor thereby reducing his retroactive support obligation by approximately 50%. Importance: Many issues, such as an award of attorney fees are generally considered to be within the sound discretion of the trial court. The Appellate Division departed from a strict application of Child Support Standards Act (CSSA) which is the controlling law in New York State on child on issues of child support in this case and greatly reduced the client’s retroactive obligation. Mr. Kusnetz zealously advocated for his client and prevailed.
Ins. Co. of the State of Pennsylvania v. Lubo, 188 Misc.2d 849, 729 N.Y.S.2d 829 (2001).
Result: Insurer not permitted to exclude either claimant from examination room during the other’s examination or testimony.
Summary: Mother and son were involved in an automobile accident and sustained serious and permanent injuries. Both applied for no-fault insurance benefits. Their insurance carrier requested examinations under oath (EUO) before court reporter to investigate the facts and circumstances of the subject occurrence. Upon arrival in the insurance company office, their attorney unreasonably insisted that the mother and son (who were driver and passenger in the accident) be physically separated during questioning and that each claimant wait outside the examination room during the other’s testimony.
This was done with the obvious intention of attempting to unfairly confuse both witnesses. The claimants would be unable to hear the others testimony, or the question format in advance. Minor and inadvertent discrepancies would be utilized by the carrier to disclaim coverage. In addition, the mother was elderly and not a native English speaker. She specifically requested that her son be present for emotional support, due to the unfamiliar nature of the proceedings and environment.
Her request was rejected out of hand by the insurance company attorney, who abruptly claimed that the examination was canceled. The carrier then attempted to disingenuously deny coverage for the subject accident based upon the claimant’s supposedly lack of cooperation with their investigation. Mr. Kusnetz quickly brought a proceeding in Supreme Court, and the insurer’s denial of coverage was reversed. The mother and son were permitted to be present during the other’s testimony as they were claimants united in interest.
Holding: Insurer’s demand at scheduled examination under oath that each claimant’s examination testimony be held outside the presence of the other was unreasonable in view of the absence of any provision in the insurance policy or even a reasonable suspicion, of fraud or collusion on the part of the claimants.
Importance: Mr. Kusnetz zealously advocated for the rights and interests of his clients despite the cynical attempts of the insurance company to deny coverage. This case is particularly noteworthy since there are relatively few cases on the issue of examinations under oath, which are governed by the insurance contract and policy provisions contained therein.
Typically, in litigation, all parties are entitled to be present during depositions which are similar to an examination under oath as sworn testimony is taken in the presence of a court reporter. However, a deposition is taken pursuant to statutes and rules regarding discovery as there is a legal proceeding pending.
An examination under oath does not necessarily occur when there is a legal action taking place. All claimants and insureds must submit to an examination under oath pursuant to the terms of the insurance policy, as a condition of the contract to ensure that coverage will be provided by the carrier. The ultimate penalty for failure to submit to an examination under oath is a denial of coverage. As an examination under oath is not protected by the statutes which govern depositions and pending litigation, very few issues have been litigated in this area. There are few guidelines as to when an examination under oath may be requested, whether the claimant or their attorney can object to questioning by the insurance company representative or even how many times the claimant or the insured must submit to such an examination arising from the same occurrence or claim.
Nonetheless, Mr. Kusnetz’s tenacity and zealously advocacy is clearly demonstrated by this case. He quickly filed the necessary papers with the court to ensure that his clients were protected. Interestingly, the closest case on point was brought in the 1950s. Few attorneys have gone so far to protect the rights and interests of their clients in this area. Mr. Kusnetz continues to strenuously advocate on behalf of his clients to obtain successful results. This case is an example of his dedication and serves as important legal precedent on issues involving discovery and client’s rights.