Opinion
Index No. 55053/2023
11-21-2023
KCC, Plaintiff, v. HKY, Defendant.
Counsel for the Plaintiff Loui-Ann Leshaur Rasul, Esq. DOW DIVORCE LAW PLLC Counsel for the Defendant: Elliot Green, Esq.
Unpublished Opinion
Counsel for the Plaintiff
Loui-Ann Leshaur Rasul, Esq.
DOW DIVORCE LAW PLLC
Counsel for the Defendant:
Elliot Green, Esq.
MEMORANDUM DECISION
HON. RONALD CASTORINA, JR. JUSTICE
The following e-filed documents listed on NYSCEF (Motion #003) numbered 53-67 were read on this motion.
Upon the foregoing documents, and on consideration of oral argument conducted on November 16, 2023, Motion Sequence #001 is resolved and therefore, it is hereby, ORDERED, that the Plaintiff's Motion, to Reargue, having been heard by this Court, is DENIED with prejudice, and it is further;
ORDERED, that the Plaintiff's request for a hearing to determine the residential custody of the subject child, JC, is DENIED and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
I. Statement of Facts
Plaintiff KCC and Defendant HKY were married in Kings County, Brooklyn, New York on May 20, 2019. There is one child of the marriage, to wit: JC born, August XX, 2019. The Plaintiff commenced this action for divorce on or about February 2, 2023. On November 8, 2023, Plaintiff filed Motion Sequence #003 by Notice of Motion.
Plaintiff seeks (a) re-argument of Plaintiff's cross motion to the Defendant's Order to Show Cause, dated October 9, 2023; (b) a custody hearing to determine the residential custody of the subject child, JC; and (c) such other and further relief as this Court may deem just and proper.
On November 14, 2023, Defendant filed opposition as part of cross Motion Sequence #004, which is not fully submitted and not part of this decision. Plaintiff filed reply to on November 15, 2023. Oral argument was heard on Motion Sequence #003 on November 16, 2023. This is a Decision and Order on Motion Sequence #003.
II. Reargument
In Motion Sequence #003, the Plaintiff seeks to reargue a motion for relief, pendente lite, decided on October 20, 2023. Pursuant to CPLR §2221[d], a party may move to reargue a prior motion for the purpose of modifying a prior order if said motion [1] shall be identified specifically as such; [2] shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and [3] shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. For the Court to exercise its discretion in permitting the Plaintiff to reargue, the Plaintiff must meet all three conditions of CPLR § 2221[d].
"A motion for leave to reargue 'shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion'" (see Ahmed v. Pannone, 116 A.D.3d 802 [2d Dept 2014 quoting Grimm v Bailey, 105 A.D.3d 703 [2d Dept 2013] quoting CPLR 2221[d] [2]; citing Matter of American Alternative Ins. Corp. v. Pelszynski, 85 A.D.3d 1157 [2d Dept 2011]).
"While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (see id quoting Matter of Carter v Carter, 81 A.D.3d 819 [2d Dept 2011]).
"A pendente lite award should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse, determined with due regard for the preseparation standard of living" (see Jin C. v Juliana L., 137 A.D.3d 1063 [2d Dept 2016] citing Fieland v. Fieland, 229 A.D.2d 465 [2d Dept 1996]). "[A]ny perceived inequities in pendente lite support and maintenance can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored" (see id quoting Swickle v. Swickle, 47 A.D.3d 704 [2d Dept 2008]).
Plaintiff has not provided any matters of fact or law that the Court was previously unaware of in determining the prior motion. Accordingly, the Plaintiff's motion is DENIED with prejudice.
III. Hearing for Custody, Pendente Lite
Custody orders are required to be entered "as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child." (Domestic Relations Law § 240 [1] [a]).
"In making a determination as to what custody arrangement is in the children's best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent[.]" (see Matter of Schultheis v Schultheis, 141 A.D.3d 721 [2d Dept 2016], citing Matter of Hutchinson v Johnson, 134 A.D.3d 1115 [2d Dept 2015]).
"There is 'no prima facie right to the custody of the child in either parent[.]'" (see Matter of Schultheis v Schultheis, 141 A.D.3d 721 [2d Dept 2016], quoting Domestic Relations Law § 70 [a]). "In adjudicating custody and visitation rights, the best interests of the child is the paramount factor to be considered[.]" (see Matter of Connolly v Walsh, 126 A.D.3d 691 [2d Dept 2015], citing Eschbach v Eschbach, 56 N.Y.2d 167 [1982]).
Plaintiff cites Matter of Dysko v. Dysko, 213 A.D.3d 847 [2d Dept 2023], which found, ""Custody determinations... require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child[.]" In this matter the Court has made a careful and comprehensive evaluation of the material facts and factored into its deliberations not only the positions of the parties, but also the impartial evaluations of the Attorney for the Child and the Court Ordered Investigation conducted by the Administration for Children's Services.
The facts in Dysko are also clearly distinct from the present matter. In Dysko, without a hearing, the Court made a final custody determination granted the mother's petition for sole legal and physical custody of the parties' children, and suspended the father's parental access with the children until he enrolled in therapy. (see id). In the present matter at bar, the Court, after considering all the factors presented by the parties, the Attorney for the Child, and the Administration for Children's Services issued a pendente lite decision that granted the Plaintiff's request for joint legal custody, granted Defendant's request for residential custody, and granted the Plaintiff a very generous and liberal parenting time schedule, which included alternating weekends with overnights, a weekly mid-week dinner visit, alternating holidays and daily telephonic/virtual communication with the child on days where Plaintiff has no in-person parenting-time.
The contention, that the court erred in determining the pendente lite custody and visitation arrangements without conducting a hearing, has been found to be lacking in merit. (see Krantz v. Krantz, 175 A.D.2d 863 [2d Dept 1991] citing Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982]; Meirowitz v. Meirowitz, 96 A.D.2d 1030 [2d Dept 1983]; Girardi v. Girardi, 140 A.D.2d 486 [2d Dept 1988]; Askinas v. Askinas, 155 A.D.2d 498 [2d Dept 1989]).
Contrary to the Plaintiff's contention, after considering all the factors presented by the parties, the Attorney for the Child, and the Administration for Children's Services the Court possessed adequate relevant information to enable it to make an informed and provident determination, without a hearing, as to whether it was in the children's best interests to grant the Defendant residential custody and the Plaintiff generous and liberal visitation, pendente lite. (see Matter of Lazo v. Cherrez, 121 A.D.3d 1002 [2d Dept 2014] citing Matter of Katz v. Shomron, 116 A.D.3d 777 [2d Dept 2014]; Matter of Law v. Gray, 116 A.D.3d 699 [2d Dept 2014]; Matter of Zaratzian v Abadir, 105 A.D.3d 1054 [2d Dept 2013]; Matter of Stefas v. Sierra, 104 A.D.3d 952 [2d Dept 2013]).
The Court had sufficient information provided by the parties, the Attorney for the Child, and the Administration for Children's Services to make its decision regarding custody, pendente lite. Accordingly, Plaintiff's request for a hearing to determine the residential custody of the subject child, JC, is DENIED..
Decretal Paragraphs
It is hereby ORDERED, Plaintiff's Motion, to Reargue, having been heard by this Court, is DENIED with prejudice for the reasons set forth above, and it is further;
ORDERED, that the Plaintiff's request for a hearing to determine the residential custody of the subject child, JC, is DENIED, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.