A Decision That Promotes Excellence in the Practice of Matrimonial Law

New York Law Journal

Troves of lawyers across various practice areas will read countless judicial decisions throughout the course of their careers. Reading “cases,” as we call them, begins on day one in law school. Sometimes lawyers read decisions because doing so is an integral part of their practice. Others might read them for educational purposes as well.

Regardless, the range of reactions a lawyer might have to reading a decision is, in this author’s experience, somewhat limited. Either we agree with the decision, or we disagree with it. Or, maybe the case is simply a means to an end, i.e., if it supports our client’s position, then we will glom on to it, and if not, not.

What I can’t recall is the last time I read a judicial decision that left me with this reaction: reinvigorated. That was until I read Justice Jeffrey Sunshine’s must-read decision in Gary G. v. Elena A.G., 2022 NY Slip Op 22373 (Supreme Court, Kings County, Dec. 5, 2022).

To be clear, many judicial decisions are released year after year in New York that are critically important to the practice of matrimonial law. But a decision that reaches a plateau of leaving you reinvigorated is another matter.

In this article, while we must recount the important facts, arguments, and legal principles set forth in Sunshine’s decision, I will focus more on what I believe to be the even more important lessons that can be drawn from the decision which underlie my rationale for choosing to title this article as I have, above.

Perhaps getting a dopamine rush from reading a case is proof positive that I’ve crossed the line into the annals of lawyer malaise. Read further, however, and I trust you might agree that this decision is indeed a teachable moment. Stated differently, the decision is a tonic when juxtaposed against the aggressive form over substance litigation approach that far too often permeates contested matrimonial actions.

The Facts

On Sept. 14, 2022, the parties rested after concluding a trial on the financial issues. Two days prior, on Sept. 12, 2022, defendant’s counsel notified plaintiff’s counsel that defendant intended to “offer certain charts pursuant to the voluminous writing exception into evidence the following day in support of her testimony regarding alleged marital debt incurred prior to commencement on her credit cards.” The decision also notes the following: “Defendant’s counsel represents that he noticed plaintiff of his intention to proffer these exhibits by way of email which is not disputed by plaintiff.” Summations were scheduled for submission by Nov. 15, 2022.

By Order to Show Cause, on Oct. 4, 2022, defendant moved to reopen the trial pursuant to CPLR §4404 to “offer into evidence, utilizing the voluminous record rule, alleged business records [credit card statements], in support of testimony regarding marital debt.”

The attorney affirmation submitted in support of the defendant’s motion affirmed that he “inadvertently forgot” to “offer certain business records, reflecting the defendant-wife’s credit card debts and the parties’ marital expenditures, into evidence.” The decision notes that “Defendant’s counsel acknowledges it was law office failure—forgetting a box of these exhibits—on the day of trial that resulted in the exhibits not being offered into evidence.”

Plaintiff opposed the motion, in part, on the basis that CPLR §4404 did not apply because “the Court has not issued a decision or judgment,” and that in any event, the “alleged debts are not marital.”

The Law

First, the court rejected plaintiff’s contention that “there is de facto irreparable prejudice presented by allowing defendant to offer the proposed evidence. If upon offer the proposed exhibits cannot withstand hearsay (or any other) evidentiary challenge, they will not be accepted into evidence.”

Relatedly, the “fact that the expenses incurred may not, after examination, be determined to be marital is not a basis for the Court to preclude the proposed exhibits from being offered into evidence.”

Next, with respect to CPLR §4404, a motion made pursuant to that law “must be made within 15 days after the submission of the court’s decision.” However, the decision explains that while “reliance on CPLR 4404(b) is not fully applicable because there has yet to be a decision and order…the unique facts and circumstances presented here clearly fall within the contemplation of CPLR 2005 relating to law office failure which provides: …the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.”

Now comes the singular most important sentence in the decision, the words of which might be worth branding on the arms of law students as they accept their diplomas at graduation as a constant reminder that the practice of law is not a Moot Court exercise:

To adopt plaintiff’s proposition would, under the facts and circumstances presented, place form over function and, more importantly, would force the parties to incur unnecessary counsel fees and would result in a waste of judicial resources (emphasis added, citation omitted).

To summarize, the court did not find that the “facts presented” revealed defendant’s motion to be “an attempt by a party for a ‘second bite at the apple,’” but instead those facts reflected “an attempt by an attorney to acknowledge an inadvertent oversight made during trial that was quickly recognized and that by correcting the court can make a final determination on the merits that will more likely lead to substantive justice than denying the application.”

The Lessons We Can Learn

I don’t know all the facts involved in Gary G. In the end, it could be that the charts are unreliable, contain hearsay, and/or do not establish the existence of marital debt. Plaintiff’s substantive positions may well be vindicated when trial resumes. We cannot know at this stage. Despite all that, Justice Sunshine’s decision is undeniably correct not just on the law as applied to the specific facts presented, but also as a matter of what should be universally accepted by lawyers as common and good sense.

The decision reminds us, or should remind us, that every participant in this process—the litigants, the lawyers, the court attorneys, the judges, etc., are human. In other words, it happens, and you know what “it” means. While our laws, as written, appear to present immediate and often times unforgiving answers to difficult legal questions, the task of our courts is not to prioritize “form over function,” but instead to do what is right, i.e., to do what is just. That is what the court did in Gary G.

In addition to seeking relief under CPLR §4404, defendant’s Order to Show Cause included a prayer for relief seeking “such other and further relief as this Court may deem just and proper.” The next time someone asks you what it means to include that language in an Order to Show Cause, tell them to read Sunshine’s decision. The answer to that question is captured in the decision, and it’s an answer that is as clear as day.

“A Decision That Promotes Excellence in the Practice of Matrimonial Law,” by Alan R. Feigenbaum was published on January 10, 2023, in the New York Law Journal.

Reprinted with permission from the January 10, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.