Opinion
350037/2016
04-23-2019
ANONYMOUS, Plaintiff, v. ANONYMOUS, Defendant.
For the Plaintiff, Law Offices of Thomas F. Liotti, Esq., 600 Old Country Road, Garden City, NY 11530, (516) 794-4700 For the Defendant, Gassman Baiamonte Gruner, P.C., 666 Old Country Road, Garden City, NY 11530, (516) 228-9181
For the Plaintiff, Law Offices of Thomas F. Liotti, Esq., 600 Old Country Road, Garden City, NY 11530, (516) 794-4700
For the Defendant, Gassman Baiamonte Gruner, P.C., 666 Old Country Road, Garden City, NY 11530, (516) 228-9181
Matthew F. Cooper, J.
Plaintiff-Anonymous ("plaintiff"), the wife of a former United States Senator, moves to enforce the terms of a stipulation of settlement (the "stipulation") entered in an action that she initiated in this court for enforcement of a prenuptial agreement. Defendant-Anonymous ("defendant"), the former United States Senator, denies breaching the stipulation and cross-moves, pursuant to CPLR § 602, to transfer this matter to Nassau County Supreme Court, where the parties are currently embroiled in a rancorous high-profile divorce proceeding.
The Nassau County and New York County cases were assigned "Anonymous" captions. Despite this, or maybe because of it, the press, as is often the case, quickly ferreted out the identity of the parties, and it has extensively covered their litigation at different stages in both courts. Thus, the continued reference to the parties as "Anonymous" is, at this point, somewhat of a charade.
As more fully set forth below, between the time the parties entered into the stipulation and the time plaintiff made this motion, she commenced an action for divorce in New York County. I declined to hear the case and instead, transferred it to Nassau County so it could be consolidated with the action for divorce that defendant had filed there. Notwithstanding this ruling, plaintiff contends that defendant's cross-motion should be denied so that her motion can be heard here. She maintains that the issue presented, which she characterizes as a straightforward matter of enforcing an agreement, is separate and distinct from the issues being litigated in the Nassau divorce. She also argues, as she did when she sought to have her divorce heard in New York County, that she is unable to get a fair trial in Nassau County as a result of what she sees as defendant's pervasive political power and influence over the Nassau judiciary.
Statement of Facts and Procedural History
On May 31, 2016, plaintiff, who was then represented by a Manhattan-based matrimonial firm, commenced this case to compel defendant to distribute certain assets in accordance with the parties' prenuptial agreement. The sole cause of action, as alleged in the complaint, was one for specific performance. At that point, and throughout the time the case was before me, the parties, while largely living apart in separate homes they own in the same Nassau County community, had yet to express an intention to divorce.
Although plaintiff's suit against him was not one for divorce, defendant initially voiced his objection to it being brought in New York County as opposed to Nassau, where the parties and their children reside. I, too, expressed my misgivings about the case being here, having long taken the position that spouses, along with their children, are better served by having their matrimonial disputes heard in a county to which they have a real connection. Nevertheless, counsel reached a tacit agreement that defendant would hold off on motioning to change venue from New York to Nassau County in order to see if the matter could be settled without further court intervention.
On May 30, 2017, the parties signed the stipulation, which fully resolved plaintiff's action for specific performance. In so doing, it also modified a number of key provisions of the original prenuptial agreement. Notably, I was not involved in any way with the negotiations that led to the settlement, nor did the parties themselves ever appear before me on the matter. Consequently, I gained no particular knowledge of the dispute or its resolution.
At the end of September 2017, a series of unfortunate events occurred which resulted in each of the parties filing for divorce and each making an emergency application for interim custody of their children. Plaintiff filed an action for divorce and brought her custody application in New York County; defendant filed and brought his in Nassau County. Shortly thereafter, the parties appeared before me and I ruled from the bench that all custody matters were to be determined in Nassau, where not only did the children and the parties reside, but where the Supreme Court had already issued a temporary restraining order, scheduled a hearing, and appointed an attorney on behalf of the children.
The parties next appeared before me on May 31, 2018, this time on plaintiff's motion to have the Nassau divorce action transferred to this county. I denied her motion, and I formalized my earlier decision transferring the New York divorce case to Nassau County. In doing so, I reiterated that Nassau was to have sole jurisdiction over any and all aspects of the parties' divorce, as venue was properly vested there.
On August 23, 2018, plaintiff made the instant motion alleging defendant's breach of the stipulation. Defendant then cross-moved to remove the matter to Nassau. By the time I heard oral argument on the motion and cross-motion in November 2018, there had been extensive proceedings in Nassau County in the now-consolidated divorce case. These included over a dozen hearing dates and approximately 15 motions. Additionally, on October 23, 2017, just weeks after defendant commenced his divorce case and a full ten months before plaintiff made her motion, the parties entered a Preliminary Conference Stipulation/Order. In it they specified that spousal maintenance and equitable distribution were "unresolved" issues, with the former subject to the "wife's challenge to relevant terms of the parties' agreements," and the latter subject to "the terms of the parties' agreements."
In two of the motions brought by plaintiff in Nassau, citing what she described as defendant's "notoriety and influence," she sought to have the judge assigned to the Nassau case recuse himself from any further involvement in the matter. The judge denied both of plaintiff's applications for his recusal, stating in each of his decisions, "this court has no allegiance, political or otherwise to the Plaintiff...or the Defendant and is fully capable of adjudicating this action fairly and impartially."
Discussion
As one might expect, the threshold question is whether defendant's cross-motion should be granted and plaintiff's enforcement motion transferred to Nassau County to be consolidated there with the parties' ongoing divorce action. In determining an application for consolidation under CPLR § 602, a court is granted broad discretion (see Hanover Insurance Group v. Mezansky , 105 AD3d 1000 [2nd Dept 2013] ). Such discretion, however, should be exercised with the understanding that "[t]he interests of justice and judicial economy are better served by consolidation ... in those cases where the actions share material questions of law or fact" ( Lombardi v. Lombardi , 164 AD3d 665, 667 [2nd Dept 2018] ).
Contrary to plaintiff's position, the issue of defendant's compliance with the stipulation is not a discreet matter that, at most, is only peripherally connected to the divorce. Instead, as defendant correctly asserts, it falls squarely within the scope of the financial issues that are being considered in the Nassau County divorce action. No better evidence of this can be found than in the Preliminary Conference Stipulation/Order, which explicitly ties the "terms of the parties' agreements" to the unresolved issues of spousal maintenance and equitable distribution. The "parties' agreements," of course, include the stipulation.
With regard to defendant's enforcement motion and the divorce action itself, there clearly exists a "plain identity between the issues involved in the two controversies" ( Vigo S.S. Corp. v. Marship Corp. Of Monrovia , 26 NY2d 157, 161 [1970] ). But it is not only shared issues of law and fact that warrant the consolidation of the two cases; there are a myriad of other factors, such as the timing of the filings and the convenience of witnesses, that make Nassau County the appropriate forum for the consolidated matters to be heard (see Harrison v. Harrison , 16 AD3d 206 [1st Dept 2005] ).
A final and especially compelling reason for plaintiff's motion to be heard in Nassau as part of the divorce proceeding, and not on its own in New York, is that the judge there has knowledge of all aspects of the parties' dispute. This is both by virtue of his having presided over the divorce since its inception and by sitting in the parties' "home" county, where they resided for the duration of their marriage and continue to reside, and where the children have lived their entire lives (see Greenblum v. Greenblum , 136 AD3d 595 [1st Dept 2016] ); see also Castaneda v. Castaneda , 36 Misc 504 [Sup Ct, NY County, 2012] ). It would neither serve the interests of justice nor judicial economy to have a part of the case heard in a "foreign" county — where no nexus exists between it, the parties, and the children — before a judge who has had only the most limited involvement with the matter.
As the totality of the facts and circumstance strongly favor the transfer of this matter to Nassau, the only way plaintiff can successfully oppose defendant's cross-motion is to demonstrate that she would suffer "prejudice to a substantial right" as a result of the transfer (see Cusumano v. Cusumono , 114 AD3d 633 [2nd Dept 2014] ). She attempts to do this by resorting to the argument that she has made during each stage of the divorce. The argument is that she cannot get a fair hearing in Nassau County because the judge handling her divorce — and, for that matter, every judge who sits in the county — is firmly under the sway of defendant's pervasive and pernicious influence.
A cardinal rule concerning recusal is that, absent statutory grounds for disqualification, a judge is the sole arbiter of whether his or her recusal is warranted by the appearance of partiality, and this discretionary decision is within the personal conscience of that judge (see People v. Moreno , 70 NY2d 403 [1987] ). Here, the Nassau County judge has stated strongly and unequivocally that he can be fair and impartial, and that there is absolutely no basis for him to recuse himself from the case. The only court competent to review that decision is an appellate court. A court of coordinate jurisdiction has no authority whatsoever to rule on another judge's decision not to recuse. Under no circumstances can I, nor should I, pass judgment in my capacity as a trial judge as to whether a litigant can be treated fairly in another judge's court.
Even if I could make such a determination, I would be hard pressed to find that defendant's political influence, whatever it may be, prevents plaintiff from being treated fairly and impartially in Nassau County. The truth is that the majority of judges in the New York State Court System are elected. As candidates they are thrust into the political arena, where they are often required to vie for support from elected officials and other politically influential people. Nevertheless, this intersection between judicial and political spheres in no way translates to judges becoming the obedient servants to those who may have played a role in their elections.
This also holds true in many instances for judges who are appointed rather than elected. Appointments are not made in a political vacuum, and those doing the appointing are often politicians themselves or else subject to lobbying from politicians.
Robert F. Wagner, who was the Mayor of the City of New York from 1954 to 1965, supposedly remarked that every time he helped somebody become a judge he regretted it because all he did was make ten enemies and one ingrate. But instead of an ingrate, what Mayor Wagner was probably looking at was an independent judge fulfilling his or her oath to discharge justice guided only by the law and not by political loyalties. Judicial independence is not just a catchphrase: It is the credo by which the judiciary lives in all of New York State's 62 counties. Accordingly, plaintiff's objection to the transfer and consolidation of the action based on her perception that she would suffer prejudice to a substantial right in Nassau County is without basis.
In light of the foregoing, it is
ORDERED, that defendant's cross-motion is granted to the extent that this action, including plaintiff's enforcement motion, is transferred to Nassau County Supreme Court to be consolidated with the divorce action pending there.
This constitutes the decision and order of the court.