Decisions of Interest

Doctor's Alleged False Accusations Negate Immunity

Two suits against a New York doctor charged with wrongfully accusing parents of abusing their infants have been allowed to go forward because the court found that the immunity generally afforded to medical personnel who report child abuse did not prevent suit, as the plaintiffs offered plausible evidence of the doctor's bad faith. V.S. v. Muhammad, 07-cv-213; Denes Q. v. Caesar, 07-cv-1281 (E.D.N.Y., 9/30/08).

The suits were brought on behalf of two infants removed from their homes after Dr. Debra Esernio-Jenssen, the medical director of Long Island Jewish Medical Center's Child Protection Center, opined their injuries were caused by parental abuse. The facts of the two cases are similar. In V.S. v. Muhammad, a new mother left her two-month-old son with his grandmother while she ran some errands. The child was then injured when his grandmother fell while holding him. When the mother returned, she saw that the baby's leg was swollen and took him to the medical center. While they were there, Dr. Esernio-Jenssen allegedly wrongfully reported to the Administration for Children's Services that the mother had inflicted a head injury on the baby. The child was removed from his mother's care that same day and was not returned for a year. During that period, the doctor allegedly repeated her claims that the mother abused the baby, including during a child abuse trial. Following that trial, the court returned the baby to his parents after the judge found the child had suffered only a broken leg, due to the grandmother's fall, and no head injury. In the second case, Denes Q. v. Caesar, an infant was removed from her parents' care after she suffered a burn while with a babysitter, again on the basis of Dr. Esernio-Jenssen's opinion that the parents caused the injury by abusing the child. The baby was not returned to her parents for two months.

Both sets of parents brought suit against the doctor, the hospital and the City of New York, alleging unlawful imprisonment, gross negligence, medical malpractice, malicious prosecution, interference with parental custody of children and violations of 42 U.S.C. '1983 for infringing on their First, Fourth and Fourteenth amendment rights. The doctor moved to dismiss, citing to laws that give mandated child abuse reporters, such as medical personnel, immunity from tort claims if they make their accusations in good faith. In support of their opposition to the motion to dismiss, the parents cited to two other cases in which Dr. Esernio-Jenssen was found to have wrongfully accused parents of abusing their children. Eastern District Judge Dora L. Irizarry decided the motions, dismissing only the malicious prosecution claims and one claim against the City for abuse of process. Stated the judge, “It is not clear what kind of ulterior motive [Dr. Esernio-Jenssen] had, but this allegation when viewed in the light most favorable to the nonmoving party and combined with other instances of misdiagnosis by Dr. Esernio-Jenssen, creates an inference of plausible bad faith that would preclude immunity.” Because of this, the court found that “both complaints have made a sufficiently plausible showing of bad faith on the part of Dr. Esernio-Jenssen to overcome the good faith presumption accorded to the medical defendants by statute.”

Court Cannot Authorize Forced Pendente Lite Sale of Home

In this matrimonial action, the husband was not entitled to an order authorizing him to sell real property owned by the parties, regardless of argument that waste or asset dissipation would result if the residence was not sold, because the divorce was not yet finalized and the offered purchase price for the marital home was well below the sale price the parties had contemplated and agreed to. Shammah v. Shammah, — N.Y.S.2d —-, 2008 WL 5072395 (N.Y.Sup., 12/2/08).

The plaintiff husband wanted to sell the marital home while the parties' divorce action was pending. Their settlement agreement discussed the fact that the home was for sale but did not state an asking price and did not state that the sale should be expedited. It primarily described how proceeds of the sale should be divided, should a sale take place. The residence was listed at $479,000 prior to the time the parties entered into the agreement. Its asking price was subsequently lowered, by oral agreement of the parties, to $449,000. The husband claimed the wife breached the separation agreement, dragging her feet on the sale by, among other things, keeping the house in a messy condition and refusing to cooperate with the realtor. When they received an offer of $375,000 on the house, the wife refused to accept it. The husband asked that the court name him as receiver of the property and authorize him to sell the home unilaterally.

The court noted the general rule that courts will not compel the sale of marital property pendente lite except under unusual circumstances or when the parties had contracted to do so. Adamo v. Adamo, 18 Ad3d 407 (2d Dept. 2005). Here, there was no enforcible contract because the separation agreement did not set out details or indeed discuss the terms of a sale of the home, and the $375,000 offer was well below the parties' last agreed-upon price for the house. In addition, even if the husband were appointed as receiver, he would not be authorized to sell the home. As receiver, he still would merely be a custodian of property, holding possession without title, and, thus, could not ordinarily sell the property. 91 N.Y. Jur 2d ' 39, at pp. 490, 508, 496 NYS2d 633.

Unmarried Couple are a 'Family' for Summary Eviction Purposes

A man who sought to evict his ex-girlfriend and their 3-year-old son from his cooperative apartment was prevented from doing so by a court because although he had never married the woman in possession of the home, her relationship with the man was in the nature of a family member. Griffith v. Reid, 68658/08.

The parties shared an apartment with their son, but the apartment was in the man's name only. In March 2008, the woman obtained an order of protection against the man, which required him to stay away from her and from the apartment. The man brought this licensee-holdover proceeding against the woman, claiming she had overstayed her license to stay in the apartment. The woman moved for summary judgment, contending Real Property Actions and Proceedings Law precluded the man from evicting her in a summary licensee-holdover proceeding, as she was a family member. The man countered that, because the couple had never married, the woman was not “family.” The judge agreed with the woman, concluding that the term “family” should not be restricted only to those couples who have obtained marriage certificates.

Retirement Accounts Must Be Used to Pay Former Attorneys

A man who attempted to avoid payment to his former attorneys by structuring his divorce settlement so that it left him without liquid assets has been ordered to pay those attorneys from his retirement accounts. Memmo v. Perez, 303086/08 (Evans, J.).

In the divorce action, plaintiff Antonio Memmo engaged the services of attorney Harold A. Mayerson of Mayerson Stutman Abramowitz Royer. Memmo became dissatisfied with his attorney's representation shortly before the matter was to go to court. On July 1, 2008, the firm moved to be relieved as counsel and claimed Memmo owed it $103,000. After refusing a hearing on the issue, Memmo agreed to a $70,000 lien against his proceeds of the equitable distribution. Memmo hired new counsel and signed a stipulation of settlement with his wife two months later. The settlement provided that Memmo would keep his own $213,000 IRA and would get $565,000 in retirement assets from his ex-wife. He put $125,000 in escrow for “prepayment” of future child support obligations, and paid his wife's attorneys $50,000. In the end, Memmo, who is a managing director of a boutique investment bank, retained no liquid assets from which to settle Mayerson Stutman's lien.

The firm filed a motion to enforce its lien against either the escrowed equitable-distribution accounts or Memmo's retirement funds.”[I]t is clear that liquid funds were available for payment of the Lien at the time that the Stipulation was executed,” wrote Mayerson in his affirmation in support of the firm's motion. “But for the creation of the Escrow Account in the Stipulation, a portion of those funds would likely have been equitably distributed to the Plaintiff, and therefore subject to the lien.” Wrote Justice Saralee Evans in ordering payment, “Plaintiff ' chose to use all liquid assets to which he had a claim to defray other obligations, but this does not impact his prior obligation to his former attorneys.” The firm, she said, “is entitled to judgment and the fact that plaintiff may incur taxes or penalties for liquidating retirement assets in order to meet this obligation is of no moment.”

Doctor's Alleged False Accusations Negate Immunity

Two suits against a New York doctor charged with wrongfully accusing parents of abusing their infants have been allowed to go forward because the court found that the immunity generally afforded to medical personnel who report child abuse did not prevent suit, as the plaintiffs offered plausible evidence of the doctor's bad faith. V.S. v. Muhammad, 07-cv-213; Denes Q. v. Caesar, 07-cv-1281 (E.D.N.Y., 9/30/08).

The suits were brought on behalf of two infants removed from their homes after Dr. Debra Esernio-Jenssen, the medical director of Long Island Jewish Medical Center's Child Protection Center, opined their injuries were caused by parental abuse. The facts of the two cases are similar. In V.S. v. Muhammad, a new mother left her two-month-old son with his grandmother while she ran some errands. The child was then injured when his grandmother fell while holding him. When the mother returned, she saw that the baby's leg was swollen and took him to the medical center. While they were there, Dr. Esernio-Jenssen allegedly wrongfully reported to the Administration for Children's Services that the mother had inflicted a head injury on the baby. The child was removed from his mother's care that same day and was not returned for a year. During that period, the doctor allegedly repeated her claims that the mother abused the baby, including during a child abuse trial. Following that trial, the court returned the baby to his parents after the judge found the child had suffered only a broken leg, due to the grandmother's fall, and no head injury. In the second case, Denes Q. v. Caesar, an infant was removed from her parents' care after she suffered a burn while with a babysitter, again on the basis of Dr. Esernio-Jenssen's opinion that the parents caused the injury by abusing the child. The baby was not returned to her parents for two months.

Both sets of parents brought suit against the doctor, the hospital and the City of New York, alleging unlawful imprisonment, gross negligence, medical malpractice, malicious prosecution, interference with parental custody of children and violations of 42 U.S.C. '1983 for infringing on their First, Fourth and Fourteenth amendment rights. The doctor moved to dismiss, citing to laws that give mandated child abuse reporters, such as medical personnel, immunity from tort claims if they make their accusations in good faith. In support of their opposition to the motion to dismiss, the parents cited to two other cases in which Dr. Esernio-Jenssen was found to have wrongfully accused parents of abusing their children. Eastern District Judge Dora L. Irizarry decided the motions, dismissing only the malicious prosecution claims and one claim against the City for abuse of process. Stated the judge, “It is not clear what kind of ulterior motive [Dr. Esernio-Jenssen] had, but this allegation when viewed in the light most favorable to the nonmoving party and combined with other instances of misdiagnosis by Dr. Esernio-Jenssen, creates an inference of plausible bad faith that would preclude immunity.” Because of this, the court found that “both complaints have made a sufficiently plausible showing of bad faith on the part of Dr. Esernio-Jenssen to overcome the good faith presumption accorded to the medical defendants by statute.”

Court Cannot Authorize Forced Pendente Lite Sale of Home

In this matrimonial action, the husband was not entitled to an order authorizing him to sell real property owned by the parties, regardless of argument that waste or asset dissipation would result if the residence was not sold, because the divorce was not yet finalized and the offered purchase price for the marital home was well below the sale price the parties had contemplated and agreed to. Shammah v. Shammah, — N.Y.S.2d —-, 2008 WL 5072395 (N.Y.Sup., 12/2/08).

The plaintiff husband wanted to sell the marital home while the parties' divorce action was pending. Their settlement agreement discussed the fact that the home was for sale but did not state an asking price and did not state that the sale should be expedited. It primarily described how proceeds of the sale should be divided, should a sale take place. The residence was listed at $479,000 prior to the time the parties entered into the agreement. Its asking price was subsequently lowered, by oral agreement of the parties, to $449,000. The husband claimed the wife breached the separation agreement, dragging her feet on the sale by, among other things, keeping the house in a messy condition and refusing to cooperate with the realtor. When they received an offer of $375,000 on the house, the wife refused to accept it. The husband asked that the court name him as receiver of the property and authorize him to sell the home unilaterally.

The court noted the general rule that courts will not compel the sale of marital property pendente lite except under unusual circumstances or when the parties had contracted to do so. Adamo v. Adamo , 18 Ad3d 407 (2d Dept. 2005). Here, there was no enforcible contract because the separation agreement did not set out details or indeed discuss the terms of a sale of the home, and the $375,000 offer was well below the parties' last agreed-upon price for the house. In addition, even if the husband were appointed as receiver, he would not be authorized to sell the home. As receiver, he still would merely be a custodian of property, holding possession without title, and, thus, could not ordinarily sell the property. 91 N.Y. Jur 2d ' 39, at pp. 490, 508, 496 NYS2d 633.

Unmarried Couple are a 'Family' for Summary Eviction Purposes

A man who sought to evict his ex-girlfriend and their 3-year-old son from his cooperative apartment was prevented from doing so by a court because although he had never married the woman in possession of the home, her relationship with the man was in the nature of a family member. Griffith v. Reid, 68658/08.

The parties shared an apartment with their son, but the apartment was in the man's name only. In March 2008, the woman obtained an order of protection against the man, which required him to stay away from her and from the apartment. The man brought this licensee-holdover proceeding against the woman, claiming she had overstayed her license to stay in the apartment. The woman moved for summary judgment, contending Real Property Actions and Proceedings Law precluded the man from evicting her in a summary licensee-holdover proceeding, as she was a family member. The man countered that, because the couple had never married, the woman was not “family.” The judge agreed with the woman, concluding that the term “family” should not be restricted only to those couples who have obtained marriage certificates.

Retirement Accounts Must Be Used to Pay Former Attorneys

A man who attempted to avoid payment to his former attorneys by structuring his divorce settlement so that it left him without liquid assets has been ordered to pay those attorneys from his retirement accounts. Memmo v. Perez, 303086/08 (Evans, J.).

In the divorce action, plaintiff Antonio Memmo engaged the services of attorney Harold A. Mayerson of Mayerson Stutman Abramowitz Royer. Memmo became dissatisfied with his attorney's representation shortly before the matter was to go to court. On July 1, 2008, the firm moved to be relieved as counsel and claimed Memmo owed it $103,000. After refusing a hearing on the issue, Memmo agreed to a $70,000 lien against his proceeds of the equitable distribution. Memmo hired new counsel and signed a stipulation of settlement with his wife two months later. The settlement provided that Memmo would keep his own $213,000 IRA and would get $565,000 in retirement assets from his ex-wife. He put $125,000 in escrow for “prepayment” of future child support obligations, and paid his wife's attorneys $50,000. In the end, Memmo, who is a managing director of a boutique investment bank, retained no liquid assets from which to settle Mayerson Stutman's lien.

The firm filed a motion to enforce its lien against either the escrowed equitable-distribution accounts or Memmo's retirement funds.”[I]t is clear that liquid funds were available for payment of the Lien at the time that the Stipulation was executed,” wrote Mayerson in his affirmation in support of the firm's motion. “But for the creation of the Escrow Account in the Stipulation, a portion of those funds would likely have been equitably distributed to the Plaintiff, and therefore subject to the lien.” Wrote Justice Saralee Evans in ordering payment, “Plaintiff ' chose to use all liquid assets to which he had a claim to defray other obligations, but this does not impact his prior obligation to his former attorneys.” The firm, she said, “is entitled to judgment and the fact that plaintiff may incur taxes or penalties for liquidating retirement assets in order to meet this obligation is of no moment.”