Matrimonial Matters: Family court and the vexing pro se litigant

By Sara Stout Ashcraft

Daily Record Columnist

Lawyers practicing in Family Court probably run up against pro se parties more often than attorneys in any other field. Of course, Family Court is set up to be user-friendly to the unrepresented party. However, it can be extremely frustrating for a lawyer representing one party to have a self-represented party on the other side. The usual court procedure tends to bog down as most pro se parties do not have much understanding as to how courts work — occasioning confusion over such things as trial procedure, evidence and trials, as well as even knowing when and how to settle a case.

Recently the Kings County Family Court dealt with a particularly persistent party representing herself. In Debbie E. v. S.F. and T.E. [2019 NY Slip Op 50705(U), 63 Misc. 3d 1225(a)], Petitioner (maternal grandmother) made a motion requesting sanctions against Respondents’ (child’s parents) counsel. Respondents cross-moved for costs and sanctions against the Petitioner.

In February 2018, the Petitioner, a paralegal in family and matrimonial law, filed for grandparent visitation with her seven-year-old grandson. The Respondents filed a motion to dismiss, claiming that Petitioner lacked standing as she had a “tenuous relationship” with her grandson, was “openly hostile and uncivil toward them, and did nothing to pursue a relationship with her grandchild since December 2015.” The Petitioner then cross-moved for temporary visitation and “for costs and sanctions against [Respondents’] ... former counsel.” The Family Court found that Petitioner did have standing for visitation, “granted her temporary Observation and Evaluation (O & E) visits with him under the auspices of Comprehensive Family Services (CFS), and scheduled a Feb. 28, 2019 hearing on whether her visitation would be in the best interests of the Child.” 

After that, Petitioner “subsequently engaged in a campaign of vexatious letter writing, telephone calling, repeated court appearances and motion practice tending to smear and annoy the parents and their counsel.” Petitioner “filed at least six motions in less than nine months seeking, among other things, anticipatory contempt against  [Respondents] for their alleged failure to comply with the O & E visits, discovery of the mother’s personal psychologist’s records, a stay of court-ordered discovery proceedings, and sanctions for allegedly frivolous conduct by [Respondents’] former and current counsel. … The latest Motion No. 6 again sought the continuation of the O & E visits with the child, despite already having obtained two Orders for 12 visits on February 4, 2019 and March 1, 2019.”

Following “long and contentious oral argument” on that motion, the Court “reiterated the continuation of the O & E visits … permitted [Petitioner] to give small gifts and take photographs of the child, and set out a discovery schedule.” Rather than comply with schedule for discovery, Petitioner “refused to answer any of the interrogatories/discovery demands and immediately sought to stay all discovery” by appealing the Order to the Second Department Appellate Department. Said appeal was denied.

With Motion No. 8, the Petitioner sought an Order granting her (again) visitation every Sunday “at her convenience and with a selected evaluator.” She also sought sanctions against Respondents’ counsel for frivolous conduct. Petitioner’s supporting affidavit “pointed to all the perceived procedural and stylistic defects in counsel’s filing of his papers and again provides a painfully detailed factual recitation of her perceptions and actions during the O & E visits. … it is only in the last paragraphs of her 12-page affidavit that she conclusorily [sic] asks for sanctions against … counsel.” Respondents countered by moving for sanctions against Petitioner for $6,000 in fees and costs for “her frivolous and harassing motions,” and also for “direction that the Clerk of the Court” not accept further motions from the Petitioner without prior court approval.

Perhaps not surprisingly, the Court agreed with the Respondents. Pointing out that the Respondents showed “a pattern of vexatious, duplicative and frivolous conduct” by the Petitioner, including filing “six motions requiring over 12 court appearances in less than nine months of litigation,” which was intended “to delay and prolong the matter, if not to harass and bully the [Respondents] and their counsel.” The Court ordered costs and sanctions against the Petitioner and “prohibited [Petitioner] from filing any new writs, motions or petitions in the Family Court of New York State without approval of the presiding judge of the court in which the action or proceeding is to be filed.”   

Sara Stout Ashcraft is a partner in Ashcraft Franklin & Young, LLP. She concentrates her practice in the areas of matrimonial and family law.

Local contractors charged with felonies

BY KEVIN OKLOBZIJA

Three Rochester contractors were charged with felonies and must pay fines and continue to cooperate with the government’s investigation into improper use of “pass through” minority contractors on the Rochester Schools Modernization Program.

U.S. Attorney James P. Kennedy Jr. announced on Tuesday that charges were brought against Journee Construction Inc. of Gates, Bell Mechanical Contractor, Inc. of East Rochester and Kaplan-Schmidt Electric, Inc. of Henrietta.

Between April 2013 and November 2013, the defendants conspired with contractors to defraud the Rochester Schools Modernization Program, a public-works project created to renovate and improve school facilities in the city, according to the U.S. Attorney’s office.

The defendants created and submitted required documentation that falsely and fraudulently represented that the contractors hired for program projects had complied with the diversity plan established for the program, according to Kennedy’s office.

Prosecutors say the contractors had not complied, and did not intend to comply, with program requirements.

In filing the charges, the government entered into a deferred prosecution agreement (DPA) with each defendant.

The DPA stipulates that:

1. Defendants fully cooperate with the continuing investigation;

2. Comply with all applicable laws and requirements with respect to any work they do involving disadvantaged business programs; and

3. Pay fines. Journee must pay $70,000, Bell Mechanical $50,000 and Kaplan-Schmidt $25,000.

Charges against the companies will be dismissed if they fulfill all terms of the DPA.

“Disadvantaged Business Enterprise programs such as this are intended to help businesses owned by minorities obtain work on federally funded construction projects,” Kennedy said in a news release. “Those who defraud the program in order to obtain federal funds take advantage both of the taxpayers and the businesses that the program is designed to assist. This office remains committed to exposing and holding accountable (those) who pervert these programs to serve their own self-interests.”

koklobzija@bridgetowermedia.com/(585) 653-4020

With sex crimes, NYPD moves to 'victim-centered' approach

By MICHAEL R. SISAK

Associated Press

NEW YORK — Two of the most concrete changes to the New York Police Department's evolving approach to sex crimes sit some 20 feet apart, flanking the lobby of a century-old Bronx police station that was known in the neighborhood's more turbulent years as "Fort Apache."

The first is a new waiting room, furnished with couches, children's toys and a radio playing soothing music. It's designed to give victims of sexual violence a momentary oasis, away from the building's usual hustle and bustle, before they meet with investigators.

The second is a private interview room where detectives from the department's revamped Special Victims Division can meet one-on-one with victims, giving them more privacy than where they often used to meet: the detective's desk in the middle of a noisy squad room.

"When you come into this space, it doesn't feel police-y, for lack of a better word," Deputy Chief Judith Harrison, the commander of the Special Victims Division, said in a recent interview. "It doesn't feel like your typical police station. It's a comfortable space."

The physical changes, along with a beefed up and retrained staff and a shift this week in how rape statistics are reported to the public, are part of the police department's embrace of what Harrison calls a "victim-centered" approach on sex crimes.

That means conducting an accurate, thorough investigation and arresting perpetrators, Harrison said, but also helping victims with counseling and other services that can help them get their lives back on track and give them some of the control that has been taken from them.

It also means starting off by believing victims, using interview techniques that are meant to be more compassionate and understanding than typical questioning, and allowing victims to move through investigations at their own pace, Harrison said.

If a victim doesn't want to meet with detectives on a particular day to look at mugshots, detectives won't pressure a victim to do so, Harrison said. Instead, they can pivot to other investigative work, such as reviewing DNA testing results, finding potential video evidence or interviewing other witnesses.

"The focus has to be on the survivor," she said. "The survivor is coming forward to report what is probably the most heinous thing that's happened to them. The worst thing that's happened to them. And when they're coming forward to report, they're showing a tremendous amount of strength and a tremendous amount of courage."

Carrie Goldberg, a New York City lawyer representing victims of sexual violence, applauded the new approach.

"Just two days ago, we had a two-hour long client interview with an amazing detective from the SVD and our client, a rape victim, felt heard and seen," Goldberg said.

"The issue here in New York is that you can have the most amazing cops and detectives — and I've worked with some amazing ones — but if you don't have prosecutors willing to bring the charges and indict, victims will never see justice."

As part of the police department's evolution on sex crimes, it will add a section to its weekly crime statistics report, beginning Wednesday, to reflect the number of sex assaults in the city as counted under the national standard in the FBI's Uniform Crime Reporting system. The FBI's definition of rape, for example, includes oral penetration and attacks on men.

"Now we're aligning with national standards, national reporting practices and we're being transparent with our numbers," Harrison said. "And that comes from us just listening to people, listening to advocates and listening to survivors."

The department will also continue to count rapes as defined under state law, which differs from the FBI definition.

Harrison, a 22-year member of the NYPD, became the first black woman to lead the Special Victims Division when she was appointed last November in a shake-up after a city watchdog's report showed the unit's caseload had ballooned by 65% since 2009, while staffing levels remained nearly unchanged.

Harrison replaced Michael Osgood, who had been asking for more detectives and additional training, but whose final weeks were marred by allegations that a top detective had compromised part of a pending sexual assault case against movie producer Harvey Weinstein.

Following the Department of Investigation report in March 2018 the NYPD pledged a "top-to-bottom scrub" of the Special Victims Division and transferred about three dozen investigators into the unit. It also freed up about a dozen more to handle cases and made it a requirement that unit detectives investigate all felony sex crimes.

In February, the NYPD said it was adding about three dozen more detectives to investigate sex crimes, including 15 handling cases involving adult victims and 16 handling cases involving child victims.

The police department, criticized in the DOI report for re-traumatizing victims and jeopardizing prosecutions, also accelerated a program to train all special-victims investigators in the specialized interview techniques, known as trauma-informed questioning.

The report also included recommendations to remodel police facilities to make victims more comfortable, as with the private waiting and interview rooms.

"I see drastic improvements," Harrison said. "I see a department that's dedicated to improving to being the best they can be and that means making the necessary changes, and I see us making those changes."

FBI searches Detroit-area home of UAW president

By ED WHITE

Associated Press

DETROIT — Federal agents on Wednesday searched the suburban Detroit home of the president of the United Auto Workers, apparently another step in a corruption investigation that has netted labor leaders and auto industry officials, and soiled the union's reputation during contract talks with U.S. car companies.

The UAW criticized the extraordinary search of Gary Jones' home in Canton Township, insisting it has fully cooperated with authorities.

"President Jones is determined to uncover and address any and all wrongdoing, wherever it might lead," the UAW said in a written statement. "There was absolutely no need for search warrants to be used by the government today.

"The UAW has voluntarily responded to every request the government has made throughout the course of its investigation, produced literally hundreds of thousands of documents and other materials to the government, and most importantly, when wrongdoing has been discovered, we have taken strong action to address it," the union said.

FBI spokeswoman Mara Schneider confirmed the search but declined further comment. TV stations aired video of agents outside Jones' home. Agents also searched the Corona, California, home of former UAW President Dennis Williams and the union's northern Michigan retreat.

Eight people have pleaded guilty in an investigation of union officials and Fiat Chrysler executives enriching themselves with money from a job training center in Detroit. The probe appeared to widen two weeks ago when a former UAW official was charged with accepting kickbacks from union vendors. Mike Grimes was associated with a UAW-General Motors training center.

For two years, the union has dealt with unflattering stories about senior leaders turning the UAW-Fiat Chrysler center into a personal piggy bank. The government said General Holiefield, who was responsible for negotiating with Fiat Chrysler on behalf of the union, had a $262,000 mortgage paid off in 2014. He died in 2015.

Norwood Jewell, who moved into Holiefield's job, was recently sentenced to 15 months in prison. His plea deal listed $60,000 in meals and golf paid with training center credit cards. Credit cards also were used for more than $40,000 in purchases for Jewell and others.

Al Iacobelli , Fiat Chrysler's chief negotiator against the UAW, also enjoyed the spoils and is serving a 5 ½-year sentence. He was ordered to repay $835,000.

Some blue-collar workers are skeptical about whether the union is representing their interests in current contract talks with GM, Ford and Fiat Chrysler. Contracts with the three expire on Sept. 14.

"Profit-laden auto companies stand to benefit from media leaks, false assumptions and political grandstanding," the UAW said in response to the search warrants. "The sole focus of president Jones and his team will be winning at the bargaining table for our members."

OxyContin maker negotiating settlement worth a reported $12B

By ANDREW WELSH-HUGGINS

Associated Press

COLUMBUS, Ohio — Purdue Pharma and the thousands of state and local governments suing the maker of OxyContin over the nation's deadly opioid crisis are negotiating a $10 billion to $12 billion settlement under which the Sackler family would give up ownership of the company, according to published reports.

Under the proposal now on the table, the Sacklers would contribute $3 billion of their own money toward the total, and the company would file for Chapter 11 bankruptcy and transform itself into a "public beneficiary trust," with all profits from drug sales going to the plaintiffs, The New York Times reported Wednesday. It said a document outlining the tentative agreement was described to the newspaper.

Also, Purdue Pharma would supply its addiction treatment drugs free to the public, and the Sacklers would sell another pharmaceutical company, Mundipharma, which would add $1.5 billion to the settlement, the Times said.

In a statement, the Stamford, Connecticut-based company did not confirm any of the details — some of them also reported by NBC — but said it sees little good in years of "wasteful litigation and appeals."

"Purdue believes a constructive global resolution is the best path forward, and the company is actively working with the state attorneys general and other plaintiffs to achieve this outcome," it said.

Paul Farrell Jr., a lead plaintiffs' lawyer representing local governments, said all sides remain under a gag order: "All we can confirm is that we are in active settlement discussions with Purdue."

Attorneys general representing several states also confirmed the accelerated negotiations.

"Our mission here has always been clear — make Purdue Pharma and the other manufacturers and distributors pay for what they did to Pennsylvania and its people, and put the Sackler family out of the opioid business for good," said Jacklin Rhoads, spokeswoman for Pennsylvania Attorney General Josh Shapiro, whose office is taking part in the Cleveland negotiations.

The settlement talks involve more than 2,000 lawsuits against the company and other players in the painkiller industry over the opioid overdose epidemic that has killed more than 400,000 people in the U.S. since 2000 and torn apart communities. The first federal trial over the devastating toll is scheduled to start in Cleveland in two months.

Purdue has been cast by attorneys and addiction experts as a chief villain in the crisis. While its painkillers represent a very small piece of the opioid market, the lawsuits accuse it of playing a central role in creating demand for the drugs by downplaying OxyContin's addiction risks and pushing doctors hard to prescribe it.

New York Attorney General Letitia James said in a statement that the Sackler family "started a national fire" and has "made billions profiting from death and destruction."

The Sacklers were ranked America's 19th-richest family by Forbes magazine in 2016, with a net worth estimated at $13 billion.

In March, Purdue and the Sackler family reached a $270 million settlement with Oklahoma over the opioid scourge.

On Monday, an Oklahoma judge found Johnson & Johnson responsible for fueling the state's opioid crisis and ordered the maker of such familiar household products as Band-Aids and baby powder to pay $572 million to help clean up the problem.

It was the first opioid lawsuit brought against the industry by a state to go to trial, and activists expressed hope the verdict would turn up the pressure on other companies to settle.

Members of the Sackler family are major philanthropists who have given money to cultural institutions around the world, including the Smithsonian Institution, New York City's Metropolitan Museum of Art and London's Tate Modern. But in recent months, institutions have come under pressure to sever ties to the Sacklers and take the family name off their walls.

Associated Press writers Geoff Mulvihill in Cherry Hill, New Jersey, and Marc Levy in Harrisburg, Pennsylvania, contributed to this report.

Death penalty filing in synagogue massacre brings opposition

By MARK SCOLFORO

Associated Press

The decision by federal prosecutors to seek the death penalty for the man accused of killing 11 worshippers inside a Pittsburgh synagogue was made despite opposition from some of the people most affected by the massacre.

The filing made this week by the U.S. attorney's office in Pittsburgh disappointed Dor Hadash, one of three congregations assembled for worship inside the building where an armed man opened fire last year.

Among the victims was Dor Hadash member Dr. Jerry Rabinowitz, a family physician who was known to be opposed to the death penalty.

The Dor Hadash statement said a possible deal for life without parole for the shooter, Robert Bowers, would honor what they called Rabinowitz's firm and unequivocal position against the death penalty.

"It would have prevented the attacker from getting the attention and publicity that will inevitably come with a trial, and eliminated any possibility of further trauma that could result from a trial and protracted appeals," the Dor Hadash statement read.

A spokeswoman for U.S. Attorney Scott Brady, whose office is prosecuting Bowers, declined to comment on its decision or the death penalty-related letters from Dor Hadash and members of New Light Congregation, which had three members slain in the attack.

New Light Rabbi Jonathan Perlman wrote to Attorney General William Barr early this month after learning a decision on the death penalty would soon be made.

"Execution has become an outmoded kind of punishment. Like slavery, this is something that belongs to another time and another place," Perlman said in a phone interview Tuesday. "I can't think of any worse punishment for a criminal than to spend the rest of his life in a maximum-security prison without parole."

Perlman said he has a faith-based opposition to the death penalty and concern about the impact a trial might have on his congregants.

"What's most important is to protect families and the victims that just do not want to go into a tailspin of depression and trauma and anxiety when this horror show comes to town," Perlman said.

The third congregation, Tree of Life, where seven members were slain, said it was not putting out a statement on the death penalty decision, adding: "We have confidence that justice will be served."

Bowers, 46, has pleaded not guilty .

Police have said he made anti-Semitic statements during and after the Oct. 27 attack. His lawyers have not responded to messages seeking comment, but in May, defense attorney Judy Clarke told a judge she hoped the case could be resolved without trial.

The death penalty filing by prosecutors cited as justification allegations of substantial planning and premeditation by Bowers, the vulnerability and number of victims, and a motivation of religious hostility.

The most recent federal execution occurred in 2003, when Louis Jones was put to death for the 1995 kidnapping, rape and murder of a young female soldier. Jones is one of just three people executed since the federal death penalty was restored in 1988.

But in July, Barr directed executions to resume , telling the Bureau of Prisons to schedule them. The first could take place later this year.

Before Bowers had been publicly identified, President Donald Trump said the Tree of Life shooter should "suffer the ultimate price."

"I think they should very much bring the death penalty into vogue," Trump said in October. "Anybody that does a thing like this to innocent people that are in temple or in church. We had so many incidents with churches. They should really suffer the ultimate price."

Donna Coufal, president of the roughly 200-member Dor Hadash Congregation, said more than two-thirds voted in favor of the letter she sent Barr on Aug. 9, urging him to seek a plea deal.

"A plea bargain for life without parole will prevent this individual getting the attention and publicity that would inevitably come with a trial," Coufal wrote.

She said Tuesday she still hoped the death penalty can be averted.

"From my understanding, it can be brought up again," Coufal said, adding that upcoming attorney generals can decide not to use the federal death penalty.