Opinion
10040-2004.
Decided January 13, 2005.
CONRAD J. RYBICKI, ESQ., PLAINTIFF'S ATTORNEY.
LAW OFFICE OF FREDERICK KLARER, MELVILLE, NEW YORK, DEFENDANT'S ATTORNEY.
This Decision addresses the issues of when it is appropriate to open a default in a matrimonial action and application of the prohibition against the "advocate as witness" rule. In this Action for Divorce, the Court is considering the following motions:
1.A Motion by Defendant Wife to dismiss the Complaint, compel service of a Complaint, vacate the Note of Issue and Inquest, compel Discovery and ancillary relief; and
2.A motion by Defendant Wife seeking to disqualify Conrad J. Rybicki, Esq., as attorney for Plaintiff Husband; to appoint a Law Guardian for the minor children; and directing Plaintiff to serve an amended Statement of Net Worth.
3.A motion by Plaintiff Husband for pendente lite relief;
The motions are determined to the extent indicated below. All other requests for relief not specifically decided herein are referred to the next Court conference. The procedural history of this case is as follows:
The parties were married February 12, 1977 and have three children, K.L. (20 years old and emancipated); C.L.(16 years old) and H.L. (14 years old). The submissions reflect that in 2003, Defendant Wife vacated the marital residence and that the children continued to reside with the Plaintiff Husband. In April of 2003, Husband petitioned the Family Court for an Order of custody for the then three minor children. Defendant did not appear at the hearing scheduled for May 22, 2003 and the Court (JAMES, Referee) issued an Order awarding Plaintiff custody with "such visitation to the mother as the father may in his discretion permit provided the mother shall refrain from consuming any alcoholic beverages or being in an intoxicated condition or using any illegal narcotic or controlled substance while in the presence of the children."
Thereafter, on October 30, 2003, Plaintiff filed a petition in the Family Court seeking support from Defendant of the minor children. Defendant appeared before the Court and a Temporary Order of Support (SHERMAN, Support Magistrate) was issued directing Defendant to pay $75.00 per month child support, payable through the Support Collection Unit. On January 22, 2004, both parties appeared in the Family Court pro se, and a support hearing was conducted. After the hearing, on April 6, 2004, the Court (SHERMAN, Support Magistrate) issued an Order directing Defendant to pay child support in the amount of $85.00 per week for the support of the three minor children, payable through the Support Collection Unit and also directed Defendant to pay 50% of the uncovered medical expenses for the minor children. The support amount was to be increased to $90.00 per week, effective April 23, 2004, with $5.00 per week applied toward arrears.
The submissions further reflect that on May 18, 2004, Plaintiff commenced the instant Action for Divorce by the filing of a Summons with Notice. An affidavit of service indicates that Defendant Wife was personally served the Summons with Notice and Verified Complaint on June 8, 2004, although Defendant contests such service. It is uncontested that Defendant did not appear in response to the Summons with Notice and that the matter was initially placed on the Court's inquest calendar for October 27, 2004. Plaintiff made a motion for pendente lite relief in the Divorce Action on June, 2004. It appears, although the Court does not seem to have been provided a copy, that in or about November 1, 2004, Defendant was served with a "notice" from Family Court that she was in arrears in her child support obligations and that such notice precipitated her contacting Frederick Klarer, Esq., whom she retained on November 6, 2004 to represent her. On November 6, 2004, Mr. Klarer sent a letter to Plaintiff's counsel, Mr. Rybicki advising of his representation of Defendant and requesting an adjournment of the pendente lite motion and the inquest which was then scheduled before this Court for November 17, 2004. On that date, Mr. Klarer also prepared and served on Mr. Rybicki a Notice of Appearance and Demand for the Complaint, a Notice to take Oral Deposition and a Notice of Discovery and Inspection. In response thereto, on November 8, 2004, Plaintiff served a Note of Issue upon Defendant by affixing same to the door of her residence and the within motions ensued.
Vacatur of the Default and Inquest
It is well settled that while a party seeking to vacate a default "`must establish a reasonable excuse for the default and a meritorious [claim]'", the Courts have adopted a liberal policy with respect to vacating defaults in matrimonial actions. Viner v. Viner, 291 AD2d 398, 737 N.Y.S.2d 379 (2nd Dept. 2002), citing, Louis v. Louis, 231 AD2d 612, 647 N.Y.S.2d 819. See also, Wong v. Wong, 300 AD2d 473, 752 N.Y.S.2d 85 (2nd Dept. 2002). Here, Defendant states that Plaintiff told her that the Divorce proceedings were "on hold" and further alleges that she was not served with the Summons with Notice. Although a process server's affidavit of service constitutes " prima facie proof of service", where there is a "sworn denial of service by the party allegedly served, the affidavit is rebutted and jurisdiction must be established by a preponderance of evidence at a hearing." Rox Riv 83 Partners. Ettinger, 276 AD2d 782, 715 N.Y.S.2d 424 (2nd Dept. 2000).
In the instant case, in light of the facts set forth herein and the extensive Family Court proceedings in which Defendant ultimately appeared, the Court is vacating the Defendant's default, striking the Note of Issue and vacating the inquest. In a long term marriage with unemancipated children, and outstanding issues of equitable distribution, child support and visitation, the Court has an interest in disposing of this case on its merits, rather than by default. On the issue of service of the Complaint, said is deemed moot by the vacatur of the default, the Complaint is deemed served, and Defendant shall serve a Verified Answer within twenty (20) days from the date herein. The case is restored to the Preliminary Conference calendar as set forth more fully below.
Disqualification of Plaintiff's Counsel
Defendant also seeks an Order disqualifying Conrad J. Rybicki, Esq. from his representation of Plaintiff based upon an allegation that he represented both parties in the purchase of the marital residence located in Northport. The submissions reflect that in May of 1992, the marital residence was transferred by Defendant's sister and brother-in-law and titled solely in Plaintiff's name. It is uncontroverted that Conrad J. Rybicki, Esq., was the attorney who handled the transaction. That fact, without more, would probably be insufficient to disqualify Mr. Rybicki from his representation of plaintiff in the matrimonial action. See, Messina v. Messina, 175 AD2d 866, 573 N.Y.S.2d 709 (2nd Dept. 1991). However, as is often the case with matrimonial actions, it is more complicated than would appear at first blush. Specifically, despite the fact that title to the marital residence was in Plaintiff's name alone, the residence was purchased from Defendant's sister and brother-in-law, and Defendant alleges that her name was not put on the deed because of her poor credit. In opposition to the motion, Plaintiff states that he paid the down payment on the residence with separate property from an inheritance. Plaintiff's counsel, Mr. Rybicki states as follows: "At no time have I ever represented the Defendant, Mrs. Flora Leonard. At no time have I ever shared any confidential or privileged information with the Defendant. The Defendant's claim that I represented her in 1992 when the Plaintiff purchased the marital dwelling is ridiculous. As she concedes her name has never been on the Deed."
In this long term marriage, where the marital residence was purchased during the marriage, the same would be subject to equitable distribution, but for Plaintiff's claim that it is his separate property. Thus, the facts and circumstances surrounding the acquisition of the marital residence have been put squarely in issue by both the Plaintiff and his own counsel. As Plaintiff's counsel is well aware, the fact that title to the residence is solely in Plaintiff's name is far from dispositive of a determination of whether the property is classified as marital or separate property. See, D.R.L. § 236B(1)(c).
The New York Code of Professional Responsibility, 22 N.Y.C.R.R. § 1200.21, contains the "advocate-witness" rule, which prohibits a lawyer from representing a client if the lawyer "knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client." D.R. 5-102(A). The narrow exceptions to the rule concern testimony regarding an uncontested issue; relating to a matter of formality where there should not be opposition; or regarding the nature and value of legal services. There exists a further exception where disqualification would work a "substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case."
The reasons for the prohibition against the "lawyer as witness" provision of the Code are described in Simon's New York Code of Professional Responsibility Annotated ( Professor Roy Simon, 2004 Edition at 579). As set forth, the rule avoids several potential effects on the trier of fact, which are inevitable when the advocate becomes a fact witness, including either discounting or bolstering the lawyer's testimony. The rule also avoids any potential conflict between the attorney and his client resulting from the lawyer's desire to place himself in the best light and the "unseemly sight of arguing to a judge or jury about his own credibility . . ." Id. The prohibition prevents any unfairness arising from the lawyer presenting his case twice to the trier of fact, both through his client and later through his own testimony. Finally, the regulation avoids the evident practical awkwardness of bringing in a new advocate to question the lawyer-witness. Id.
In the case at bar, Plaintiff claims that the marital residence, purchased during the marriage, is his separate property. It is clear to the Court that Mr. Rybicki's participation in the acquisition of the residence may compel him to be a witness during this matrimonial action. Moreover, it is also evident that his testimony would not fall within any of the exceptions to the "advocate-witness" rule, nor has Mr. Rybicki even alleged that his disqualification would work a substantial prejudice on Plaintiff. Ironically, if it was conceded that the marital residence was "marital" property, then the Court would be unlikely to disqualify Mr. Rybicki. Messina, supra. However, it appears that the classification of the marital residence and equitable distribution thereof will be the crux of this matrimonial action, and therefore, Mr. Rybicki's representation of Plaintiff is problematic as he is likely to be called as a witness regarding the real estate transaction. See, Lewis v. Goldberg, 6 AD3d 395, 774 N.Y.S.2d 370 (2nd Dept. 2004). Therefore, Conrad J. Rybicki, Esq., is hereby disqualified from representing Plaintiff in this action and all proceedings are hereby stayed for a period of thirty (30) days to permit Plaintiff to obtain new counsel. The inquest scheduled for January 19, 2005 is vacated in accordance with this Decision and Order, and a Preliminary Conference is scheduled for March 3, 2005. All other requests for relief contained within the motions are adjourned to March 3, 2005.
The foregoing constitutes the DECISION and ORDER of the Court.