Maybaum v. MaybaumMaybaum v. Maybaum
SIMON MAYBAUM, Respondent-Appellant, v NADINE MAYBAUM, Appellant-Respondent. [933 NYS2d 43]—
The defendant
In April 2010, the defendant commenced a proceeding pursuant to
The parties made several motions and cross motions for relief. The Supreme Court, inter alia, denied that branch of the defendant‘s motion which was to direct the plaintiff to make payments to a certain school, denied those branches of the defendant‘s cross motion which were pursuant to
In addition, the Supreme Court, inter alia, denied those branches of the plaintiff‘s motion which were to hold the defendant in civil contempt for her failure to provide an accurate statement of net worth, pursuant to the
The Supreme Court erred in granting that branch of the plaintiff‘s motion which was to strike stated paragraphs of the defendant‘s counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant‘s counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff‘s family offense petition, did not arise out of the same transaction or series of transactions. “It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A ‘pragmatic’ test has been applied to make this determination
“Collateral estoppel, or issue preclusion, ‘precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . , whether or not the tribunals or causes of action are the same‘” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). “The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349). “[C]ollateral estoppel effect will only be given to matters actually litigated and determined in a prior action” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985] [internal quotation marks omitted]). “An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation” (id. at 456-457). Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant‘s participation in the stipulation to withdraw her family offense petition, with prejudice, cannot be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440-441 [2006]; Singleton v Compere, 243 AD2d 213, 216-218 [1998]).
Further, “[t]he circumstances set forth by plaintiff simply do not rise to a level of unconscionability warranting application of equitable estoppel” (American Bartenders School v 105 Madison Co., 59 NY2d 716, 718 [1983]; see Geller v Reuben Gittelman Hebrew Day School, 34 AD3d 730, 731-732 [2006]).
The Supreme Court further erred in granting that branch of the plaintiff‘s motion which was to strike stated paragraphs of the defendant‘s counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party‘s claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage (see Vestal v Vestal, 273 AD2d 461, 462 [2000]; Miglio v Miglio, 147 AD2d 460, 460-461 [1989]). Further, the Supreme Court erred in granting that branch of the plaintiff‘s motion which was pursuant to
The Supreme Court should have granted that branch of the defendant‘s motion which was to direct the plaintiff to make payments to a certain school, pendente lite. The parties’ older child had attended the Solomon Schechter School of Westchester (hereinafter the Schechter School). A prior order of the Supreme Court provided, in part, that “[a]ll fees for agreed upon summer camp, agreed upon private grade school tuition, necessary child care shall be borne 60% Plaintiff and 40% Defendant.” Although the parties dispute whether there was an agreement as to their older child‘s education for the 2010-2011 academic year, the record
The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendant‘s cross motion which was to impose sanctions on the plaintiff and/or his attorney, because the defendant failed to demonstrate that the conduct at issue was frivolous within the meaning of
The Supreme Court properly denied that branch of the plaintiff‘s motion which was to hold the defendant in civil contempt for her failure to provide an accurate statement of net worth, as the plaintiff did not meet his burden of proof (see Katz v Katz, 73 AD3d 1134 [2010]; Rupp-Elmasri v Elmasri, 305 AD2d 394, 395 [2003]). Further, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff‘s motion which was to impose sanctions on the defendant and/or her attorney, because the plaintiff failed to demonstrate that the conduct at issue was frivolous within the meaning of
The parties’ remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal and Hall, JJ., concur.