In a recent decision by Judicial Hearing Officer Stanley Gartenstein, the Court strongly considered the believability of a party's poverty claim in its award of maintenance and child support. In New York matrimonial and family law cases, it is essential to remember that Judges will examine an individual's expenses and lifestyle in determining maintenance, child support, and equitable distribution. Below find the text of the decision.
Judicial Hearing Officer Stanley Gartenstein
NASSAU COUNTY
Supreme Court
Judicial Hearing Officer Gartenstein
DECISION
J 1 's efforts to beat the system represent a new zenith in chutzpah. 2
After a long and bitterly contested trial, this complex litigation may best be summed up as a well crafted but legally bankrupt claim of "sudden poverty", a disease which seems to infect matrimonial litigants with particular frequency. Apart from the time, effort and expense to which J has put his wife to penetrate the smoke screen he has so skillfully created-and we must begrudgingly give him credit for that-his schemes are a house of cards constructed by a self-indulgent individual intent upon his own gratification at the expense of all those innocent persons who have given of themselves to him and who had a right to expect more.
THE MARRIAGE
The parties ("N' and 'J") were married in 1980 in a religious ceremony. There are three children, A, born XXXX; S, born XXXX; and E, born XXXX. A is past the age of emancipation; S will reach that age in less than a half year; E has XXXXX and XXXXX traits. She has undergone surgery for XXXXX.
JURISDICTION
This action was commenced on September 26, 2005. It has tortuously wound its way through the Court and been referred to the undersigned, a Judicial Hearing Officer, who conducted the trial upon a hear and determine stipulation. The trial commenced on June 1, 2009 and concluded on October 28, 2009. Closing submissions are now complete.
CHUTZPAH/CREDIBILITY
Because the "sudden poverty" defense makes credibility the central issue in any matrimonial action, we are called upon to assess the motives of the respective parties and their incentive or lack of it to color the truth or lie outright. Our insight into J must therefore, at least to some extent, be governed by the chutzpah he has demonstrated.
It doesn't take chutzpah to cheat on one's spouse. But J didn't just cheat on N. He diverted marital income to take his girlfriend on luxury vacations which he charged to a credit card knowing that the bill would necessarily come to his home and be opened by N. He refused to give up this meretricious affair or leave the marital home even after this action was commenced, insisting instead on humiliating N by carrying it on openly and notoriously while living under the same roof with her and the children.
Nor does it take chutzpah to claim poverty while bedecking oneself in $5,300 designer jeans from Tyrone's in Roslyn Village. But J's "explanation" would have the Court believe that these designer jeans in particular were purchased solely to comply with a one day per week dress-down code allegedly prevailing in his new work environment.
It doesn't take chutzpah to devise a scenario of "sudden poverty'. But J closed down one of New York's premier stationery stores on the eve of trial, thereby putting 24 faithful employees on the unemployment lines.
Nor does it take chutzpah to steal from one's own father. But J plundered his dying father's estate as he suffered from Parkinson's disease and lacked the physical and mental capacity to "lend" the money J claims to have "borrowed". And when caught by his father's executor with his hand in the cookie jar, J brazenly advanced the interesting proposition that N of all people should shoulder part of the responsibility to make restitution.
It doesn't take chutzpah to demand custody of the children. But J litigated for custody of two estranged sons who barely speak to him and as he was about to face cross-examination, his demand mysteriously evaporated.
Nor does it take chutzpah not to get along with one's in-laws. But J hired a detective to dig up actual or imagined dirt on his 84 year old father-in-law. This at the same time he was scheming to avoid paying maintenance by claiming that N's father, the very same 84 year old father he was trying to discredit, would obtain employment for her thereby taking him "off the hook".
It doesn't take chutzpah to claim poverty while maintaining membership in the exclusive Muttontown Golf Club. But J maintained his membership first; then took a leave of absence conveniently timed for his application for downward modification; then, after its denial, reinstated himself until the eve of trial; and then conveniently "canceled" so that he could again claim poverty.
These acts raise the bar. They establish a new standard in chutzpah, even for matrimonial actions.
AS
The issues of this litigation are so intimately interwoven with J's alter-ego business entity that the Court's ultimate decision will necessarily center on its assessment of that entity's inner structure. For this reason, detailed analysis of AS, J's alter ego, must constitute a required threshold to any decision addressed to the financial equities between the parties.
AS, a thriving retail and wholesale office supply on Madison Avenue and 40th Street in New York City, was founded by defendant's grandfather. It was then owned and operated by his father, B. J, representing the third generation, worked there, effectively assuming control during years in which his father grew old. He forced his brother S out of the business on one day's notice over some personal issue. He and his sister, J, now effectively own all the assets of AS in whatever form they now exist; J's husband and J now operate what remains of AS.
In view of J's pained outcry that AS is worthless, it is interesting that, "poverty" and all, he recently purchased his brother's 16 percent share of AS for $350,000
On the eve of trial, J, claiming that AS had suffered devastating losses which mandated that he close the store, reinvented the business with an elaborate structure which basically, notwithstanding his claims to being destitute, kept his flow of income intact while showing an illusory business decline. He accomplished this by closing his Madison Avenue store, making his business an independent contractor of one of the country's largest buying offices, WLG, into whose office he physically moved. In so doing, he took advantage of the tremendous discounts generated by WLG's purchasing volume while virtually eliminating overhead expenses.
J's new corporation is known as GM, LLC. He owns 51 percent thereof. He is also the owner of 50 percent of AS and 50 percent of ABC, a separate entity created to fill customers' demand for coffee and bottled water. It is claimed that AS's only income is from a licensing agreement with GM, the net effect of which provides that GM make certain payments for the good will, name, phone number, etc. of AS.
As pointed out in plaintiff's closing argument, J had certain concerns on the eve of trial:
1. He and his sister J were liable for a line of credit with HSBC in the sum of $250,000;
2. If his new business arrangement with WLG did not succeed, he would then be compelled to resume business with his former supplier, UN, to which AS had a running remaining balance of $474,480;
3. A $205,000 shareholder's "loan" which he could "repay" by distributing to himself and his sister tax free;
4. AS's $2,428,000 loss carry forward which would allow it to write off income, to the extent of this loss.
J's incorporation of GM was immediately followed by an independent contractor's agreement on its behalf with WLG on September 25, 2008 which provided that GM would purchase supplies through WLG which offered substantial purchase discounts. The contract provided that GM and WLG would divide gross sales revenues forty (40 percent ) percent to GM and sixty (60 percent ) percent to WLG. Additionally, for the first three years, GM is paid an additional bonus by WLG equal to ten (10 percent ) percent of the gross profit. WLG assumed payment for GM's staff salaries up to $35,000 per year for each million dollars of GM's gross annual sales. The contract with WLG provides that for the first year (October 1, 2008 through September 30, 2009) this amount would be based on $5 million of sales or $175,000 of salary paid to the GM staff. Thereafter, it is to be adjusted pro rata in accordance with the actual gross sales of GM.
GM, J, J, and a small staff then physically moved in with WLG and now operate from there.
Following execution of the contract, AS then delivered a promissory note (November 12, 2008) to its former supplier UN Stationers in the aggregate sum of $474,480. By its terms, as of February, 2010 the balance due thereon is $158,160. Although not required to do so, on November 15, 2008, three days following execution of the promissory note by AS, J personally guaranteed payment of it.
This assumption of personal liabilities furthered J's scheme to preserve the valuable assets remaining in AS, including the shareholder's loans and loss carry forward as well as the ability to structure other tax and business benefits.
On September 24, 2008, AS entered into a "Licensing Agreement" with GM (both totally controlled and dominated by J wherein GM agreed to pay $26,200 per month ($314,400 per year) to AS for the use of AS's name, telephone number, website and customer list. J admitted under oath that this sum was determined solely by him and that it was based upon AS's debt. 3
D, CPA, a respected evaluator, testified that the licensing fee of $26,200 per month was obviously established to enable GM to reduce its taxable income by deducting this so-called "fee" paid to AS as a business expense. AS could then offset this income from GM against its $2,428,000 loss carry forward. This results in a double deduction for D's related companies, and enables him to manipulate the taxable income of both entities in violation of IRS Code Section 1201.
In getting from Point A to Point B, AS suddenly changed the method of preparation of its December 2008 financial statement from a "review" standard, which requires investigation and verification of all financial information provided, to a "compilation" standard for the last financial statement dated December 31 2008. This latter standard is based solely upon J's representations concerning his financial transactions. He never produced a "reviewed", much less "audited", financial statement for December, 2008, the only six month period in which AS reported a "loss". 4
D prepared an analysis of cash flow of GM and AS. In the first year of operation, GM received $508,266 in commissions, plus a bonus of $132,465. Thus, its total income for the first year of operation was $640,733. After various deductions including deducting the so-called "licensing fee" paid to AS, the resulting total cash flow was $549,933. Fifty percent of this figure, viz, $274,966 would reasonably flow as income to J for the first year of operation based upon the assumption that the UN note would be paid in full. Plaintiff urges that this is the appropriate income to be imputed to J as the basis for her claim for maintenance and child support. She asserts no claim in equitable distribution to any part of this business, whatever format is in current use. Her closing argument points out that the balance due on the UN note is $158,160. J's own filings outline his tax refunds of $248,280 received (or shortly to be received) pursuant to his filings in the Fall of 2009. Accordingly, after payment in full of J's share of the HSBC line of credit ($125,000) being held pursuant to this Court's Order), he will have available, by reason of tax refunds, an additional $113,848, a sum more than sufficient to fully satisfy his obligations to UN. This would make available to his business entity a full line of credit which has been unavailable for years.
Assuming arguendo that J continues paying the so-called "licensing fee", he will then have the wherewithal to repay himself and his sister the outstanding shareholder's loans of $205,000 tax free any time he so desires. This will reduce the tax liability of GM by having it make payments to AS which bear no proportionate relationship to AS's assets and will artificially reduce GM's income so that AS will receive tax free income by deducting it against its $2,428,000 loss carryover. All this rests in J's uncontrolled discretion. He is in effect taking money from one pocket and putting it in another. He has masterfully manipulated the shadow entities created at his direction to present an illusion of legitimacy. Thus everything which has or will happen boils down to J and only J.
In the face of J's "sudden poverty" claim that his business has been in a downward spiral first because of 9-11, second because of competition from Staples, it is appropriate to note the amounts reported as business income on his tax returns as follows:
2000 $214,960
2001 $206,052
2002 $206,967
2003 $210,475
2004 $214,310
2005 $227,864
2006 $239,476
2007 $241,388
J's companies have also consistently logged increasing gross profits in the face of his claim that business was dramatically declining. The evidence shows that reported gross profits were:
2001 32.45 percent
2002 36.25 percent
2006 35.9 percent
2007 36.13 percent
2008 33 percent
During GM's first year of operation gross profit percentages were shown to be consistent with AS's as follows:
October 2008 32 percent
November 2008 34 percent
December 2008 30 percent
January 2009 32 percent
February 2009 32 percent
March 2009 32 percent
April 2009 30 percent
May 2009 31 percent
It is also painfully clear from the evidence that virtually all personal expenses, credit cards, bills, groceries, life insurance, disability insurance, cell phone, automobile, long term care, and commutation expenses for J have been paid through these business entities in a total expenditure which dwarfs his declared earnings.
The totality of the evidence paints a picture of J's undiminished wealth and an almost obsessive single-mindedness on his part to do N, his long-term wife and mother of his children, out of her just entitlement. His testimony, obviously contrived for the trial, was pedantic, often condescending. J made sure to lecture the Court about how his elderly father-in-law, as he tells it, the source of all his problems, ruined his life in some vague and unspecified manner. The Court was often called upon to strike his gratuitous remarks and cut off seemingly endless monologues. At one point, it became necessary to call a recess and instruct him to leave the courtroom temporarily and return "without the attitude".
It is indeed rare that a court is presented with a tissue of ready-made fabrications so extensive and far reaching that it literally mandates disbelief of a witness' entire testimony.
LIFESTYLE
Where, as here, the transcendent issue is maintenance, it is appropriate that the lifestyle of the parties be considered first. In this connection, it is relevant to point out that in the original enactment of DRL §236, et seq., the standard of living of the parties while married was listed as one of the enumerated factors to be considered by the trial court. The Legislature, later finding that consideration of lifestyle as one factor among many was "feminizing poverty', removed it as one of the in seriatum factors and inserted it in the preamble of subsection 6 thus granting it transcendent effect.
N's evidence of lifestyle was not effectively contraverted at the trial or in defendant's closing memorandum. Indeed, the thrust of J's closing argument once again disingenuously postulates without basis that the parties always lived beyond their means during their marriage. J's flow of income absolutely belies this. We therefore track herein plaintiff's recitation of the evidence as set forth in her closing argument.
At the time they were married, N and J moved to an apartment in New York. They immediately obtained full golf memberships at the Muttontown Country Club where they dined on weekends and where J would play golf. They also regularly dined at expensive New York City restaurants. On their many vacation trips, they hired private tour guides and routinely shopped at exclusive stores (Armani, Bottega Venetta, Gucci, Fendi, etc.).
N worked for her father in his jewelry business until their first child, A, was born on XXXX. Thereafter, she managed a Tiffany account part-time on recommendation from her father. She earned between $35,000 and $45,000 in 1989 and 1990 solely from commissions without relationship to time actually worked.
In 1988, N and J purchased a home and moved to Roslyn. The down payment came from proceeds of the sale of their New York City apartment and from gifts totaling $75,000 from N's parents and grandmother. N asserts no separate property claim for these monies.
In 1989, the parties gutted their home, adding 1,500 square feet (new kitchen, master bedroom and bath; windows and siding; new heating system; hot water heater and additional air conditioning zone) at an approximate cost of $300,000. In addition to the Muttontown membership, they also joined Pines Pool Club and the Atlantic Beach Club.
J and N employed a live-in housekeeper and sent the children to exclusive day and sleep-away camps. They also took lavish vacations-Vail, Colorado (rental of house and skiing); Lion's Head (approximately $12,000); Venetian Resort and Spa, Scottsdale, Arizona, ($10,000); Beaver Creek, ($12,000); Boca Raton, (numerous occasions); Disney World (numerous occasions); Sandy Lane, Barbados (five star hotel $12,000); Las Vegas, Ritz Carlton ($17,000); Italy: Hassler Hotel, Rome; Lugano Hotel, Florence; Bauer Hotel, Venice, ($18,500 hotels alone); Hawaii, Four Seasons Hotel ($11,500); Blacombe, Canada, Whistler Hotel, ($22,000); Anguilla ($22,000).
In May, 2005 N and J traveled to London twice to see a rock and roll group, purchasing tickets costing $800 each, (total concert cost $3,200, total with hotel, $15,000).
Needless to point out, J also took numerous trips with "friends," without N, including: Greece (with girl friend); Brandon Dune, Oregon; South Carolina (twice); Las Vegas, Bellagio Hotel (with girlfriend); Miravel Spa, Arizona (with girlfriend); Cancun; Sandy Hill, Nebraska; Miami (with girlfriend); South Carolina (golf trip). Numerous additional golf trips were elicited during trial.
N was primary caretaker of the children, responsible for the household's functioning. She was active in the children's education and sustained them in their medical issues which included A's XXXXX disorders, S's XXXXX and L's XXXXX, XXXXX and XXXXX.
N is 51 and in good health. J is 52.
Immediately prior to commencement, J entered into contracts and obtained estimates for additional renovation of the marital residence in an approximate sum of $100,000, to include the boys' bedrooms, new furniture, redoing the master bath and bedroom and redesigning the front entrance. He retained an architect (Spring, 2005) to carry these forth, while advancing a claim to the Court in bad faith that his business was failing. Indeed, when N learned of his extramarital affair, and upon his refusal to end it, it was N who stopped the work on the house and commenced this action.
N demands spousal maintenance of $5,416.67 per month ($65,000 per year) for fifteen years (citing DRL §236(B)(6)(a); DiBlasi v. DiBlasi, 48 AD3d 403), emphasizing her long-term marriage (cf. Chalif v. Chalif, 298 AD2d 348) and the luxurious standard of living enjoyed by the parties during marriage (Hartog v. Hartog, 85 NY2d 36 (1995)..
An award of maintenance, amount and duration thereof, is an issue vested in the sound discretion of the trial court.
In Hartog v. Hartog, supra, the parties, as here, were married for twenty years and were substantially the same age as N and J. Mrs. Hartog received substantial equitable distribution in excess of that which N's ultimate award will be here. The Court of Appeals reversed the Appellate Division's grant of non-durational maintenance to Mrs. Hartog, citing Domestic Relations Law §236, et seq. which required that the Court give special consideration to the marital standard of living. It reinstated the trial court's decision calling for non-durational maintenance owing to Mrs. Hartog's inability to become self-supporting at a level commensurate with the marital standard of living. Holding that the legislative history of the statute unequivocally demonstrated the legislature's intent with regard to the pre-separation standard of living, Hartog emphasized that
"…the Wife's ability to become self-supporting with respect to some standard of living in no way obviates the need for the court to consider the pre-divorce standard of living, and does not create a per se bar to lifetime maintenance."
To be sure, N is capable of earning some money now. She currently works in a clerical capacity in a doctor's office earning minimal income ($12 per hour). Her claimed 'contacts" in the jewelry industry, stemmed primarily from her aged father and have dried up. She is untrained and uncredentialed. N will never have the capacity to earn sufficiently to resume her pre-separation standard of living. In the face of N's testimony that she might be capable of becoming self supporting in a lesser period of time, we respectfully believe her estimate to be overly optimistic and not supported by reality.
The Court declines to follow the conclusions of defendant's vocational expert who testified at the trial which were speculative and apparently tailored to minimize an appropriate award of maintenance to N.
The Court of Appeals in Summer v. Summer, 85 NY2d 114 (1995), reversing an appellate reduction of non-durational to durational maintenance and reinstating the trial court's decision held that "because Supreme Court's determination that the wife is incapable of becoming self-supporting at a level roughly commensurate with the marital standard of living comports with the weight of the evidence, we reinstate its judgment insofar as it awarded the wife permanent maintenance."
In Phillips v. Phillips, 182 AD2d 746, the Appellate Division in this Department affirmed an award of non-durational maintenance to a forty-nine year old wife based on a twenty-nine year marriage in which, the wife served as homemaker and sacrificed her career to care for three children. The husband, an attorney, earned between $100,000 and $200,000, the wife $15,400 with little apparent likelihood that her salary would increase to a point where she could become self-supporting. This holding closely approximates the facts before us.
In Bogannam v. Bogannam, 60 AD3d 985, the Second Department awarded ten years' maintenance following a twenty year marriage (husband's earnings $200,000).
Finally, in Kriftcher v. Kriftcher, 59 AD3d 392 the Second Department held that
"…although the wife earned a teaching license during the course of the marriage, she is, at present, primarily a homemaker, who works only part-time as a substitute teacher earning approximately $10,000 per year…. Considering, among other factors, the standard of living of the parties during the marriage, the distribution of marital property, the health of the parties, the present and future earning capacity of both parties and the ability of the party seeking maintenance to be self-supporting…a maintenance award…for ten years is appropriate."
J's affidavit of Net Worth as of commencement, received in evidence listed the parties' monthly expenses at $28,521. On the eve of trial, his updated Net Worth Statement as of December, 2008 acknowledged "after-tax" monthly expenses of $20,341.34 ($244,092 per year). It included no expense for medical insurance, an additional cost to N to follow this divorce. DRL §236(B)(6)(11) as amended effective September 14, 2009, now requires the Court to consider "the loss of medical insurance" as a factor in awarding maintenance. 5
The Court has considered the mandatory factors made relevant by DRL §236, et seq. to the extent set forth without adhering to a slavish repetition thereof. N is awarded $65,000 per year as demanded based upon her needs and expenses as conceded by J in both sworn net worth statements. The parties' home has been sold. N has moved to an apartment with the children. Her rent and expenses while deviating from those listed in connection with the house by J in his net worth statement, do not appreciably alter her need for the award as requested.
Notwithstanding the request for 15 years of maintenance, N will reach the age of full eligibility for Social Security in 14 years on her 65th birthday. The duration of our maintenance award to her differs slightly from her request in that our award runs to her 65th birthday, no later.
While maintenance is usually taxable to the wife unless stated to the contrary by the Court, the Appellate Division in this Department has ruled that any award relieving the recipient spouse of taxable liability for it must articulate a reason (cf. Grumet v. Grumet, 37 AD3d 534). The award of maintenance herein to the wife shall be tax free to her. We rely here upon the testimony of D to the effect that J's scheme with reference to "goodwill" payments to ASs is illegal under the Internal Revenue Code. We believe it inconsistent with public policy to provide him with yet another outlet to minimize the entitlement of the taxpayers to their fair share of his earned income. We do not perceive the morality of rewarding him for this dubious practice by providing yet another opportunity for him to manipulate his funds to the detriment of the taxpayers.
J's true income as projected by D is $274,966 less FICA and Medicare totaling $10,311. Deducting $65,000 awarded herein for maintenance from J's base salary for CSSA purposes, yields a total of $199,655. It is conceded that both boys are emancipated leaving L as the only child requiring an order of support. The statutory percentage of 17 percent is applied to the CSSA net income (less maintenance) of $199,655 yielding a total figure for child support of $34,000 per annum. We respectfully believe it appropriate to apply this percentage, notwithstanding the statutory "cap', to the total base figure in view of L's special needs. All applications to impute income to N for purposes of computation are denied as being without basis in fact or law.
We reiterate here that which we have indicated during trial that from a review of the credible evidence, D's figure is a conservative estimate not approaching our own estimate of J's actual income. Nevertheless, we are bound by propriety not to exceed the demand on record, lacking any showing that the demanded amount is inadequate to meet L's needs.
AUXILIARY DIRECTIVES
All monies now being held by J's attorneys in escrow or otherwise shall be transferred into custodial accounts and earmarked for college for S and L with N as custodian pursuant to stipulation dated August 21, 2009. Should these funds be inadequate to pay tuition, room and board in accordance with standards prevailing at SUNY (Binghamton campus), all additional funds shall be paid by the parties on a 90/10 allocation basis. This order is effective retroactive to the Fall, 2009 semester.
J is directed to obtain and keep in effect a life insurance policy of $4,000,000 to secure maintenance and child support payments. Duplicate premium notices addressed to N shall be arranged for by J.
J shall maintain medical and dental coverage for the unemancipated child and be responsible for 90 percent of all unreimbursed expenditures. To the extent feasible by law, no out-of-network providers shall be used without J's or, in the alternative, the court's approval.
J is ordered to pay the overdue sum of $18,250 to Doctor S for N's dental work. Failing same, the Court will direct entry of judgment against him upon appropriate application.
The funds now held by Oppenheimer representing an IRA of approximately $30,000 and a 401K in AS/GM of approximately $64,000 shall be divided equally. This directive shall be implemented by retention of Lexington consultants to draw appropriate QDRO orders with fees for same split equally between the parties.
N is awarded $60,699.50 representing 50 percent of the marital Madoff funds taken by J (cf. Exhibit 11) for his own purposes.
Counsel for defendant now holds $155,410 in escrow pursuant to written stipulation dated March 16, 2009. The husband's share of this escrow fund has been properly disbursed in accordance with this stipulation. The balance thereof belongs to N and shall be distributed accordingly.
During the trial, J moved for downward modification in the face of a "so ordered" stipulation to the effect that the applicable standard for modification would be "extreme hardship" and the further fact that he had already unsuccessfully moved for this relief once. This second motion which had been referred to the trial by the undersigned is denied.
The parties have disposed of the marital domicile by sale. A stipulation dealing with distribution of various sums of money not necessarily pertaining to the sale itself has been executed by the parties and is approved.
COUNSEL FEES
Plaintiff's application for counsel fees to the firm of B and R in the sum of $340,000 is granted based upon the equities of the case (O'Shea v. O'Shea, 83 NY2d 187); the relative circumstances of both parties (Charpie v. Charpie, 271 AD2d 169); the added burden imposed upon counsel by unreasonable and groundless claims (Brancoveanu v. Brancoveanu, 177 AD2d 614); the presence of imputed or hidden income (Steinberg v. Steinberg, 59 AD2d 702); the unnecessary prolongation of litigation by one party (Ventimiglia v. Ventimiglia, 36 AD2d 899); and attempts by one party to frustrate, discourage and otherwise intimidate the other (Schussler v. Schussler, 109 AD2d 875; Lowinger v. Lowinger, 245 AD2d 490). Counsel has fully complied with the appropriate rules promulgated by the Office of Court Administration. We find that counsel possesses the stature, ability, reputation and respect appropriate for these fees. The time charges claimed for performance of counsel's duties are reasonable, even conservative.
All claims, if any, for arrears or for retroactive effect to be extended to any order herein shall be brought on by motion in writing with supporting affidavits computing same with specificity prior to submission of final judgment.
Stipulations between the parties resolving a number of issues as presented with final submissions are approved. All issues addressed in the final submissions unresolved as of that time are now deemed fully resolved.
All prayers for relief by either party not addressed by this decision are hereby denied.
The foregoing constitutes the decision and order of this Court.
Settle final judgment on notice.
The Clerk shall retain all exhibits pending expiration of time to appeal.
1. Removed.
2. "Chutzpah (Yiddish)-unbelievable gall; insolence; audacity; cheekiness, impertinence, impudence, crust, gall, the trait of being rude and impertinent, inclined to take liberties."
Collins English Dictionary-6th edition, 2003
The Court of Appeals has encountered the necessity of expressing itself with this metaphor (cf. People v. Campbell, 97 NY2d 532).
3. D, CPA, an expert witness who evaluated those entities prior to trial, citing IRS Code Section 482, testified that the only legal method to determine the value of a licensing fee is upon an arm's length transaction for the value of the licensed assets, a proposition whose validity was acknowledged by J's own bankruptcy expert witness SP, Esq. Thus, if J is to be believed that AS "went out of business" or had "no value" as of the Fall of 2008, there could be no "fair market value" for the Licensing Agreement and certainly no consideration for it. Furthermore, the "Licensing Agreement" permitted the parties thereto, AS and GM, both alter egos of J, to change the licensing fee at will.
4. AS's "reviewed" financial statements from 2000 through June 30, 2008 have been received in evidence.
5. In addition to any monetary award, J is directed to fully cooperate in N's attempts to obtain COBRA coverage. ¦
SUPREMECourt
J.H.O. Gartenstein
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