Motion for Writ in Thomas O'Donoghue v. Tricia O'Donoghue| Trellis.Law

On July 26, 2023 a Motion-Secondary was filed involving a dispute between Thomas O'Donoghue, and Tricia O'Donoghue, for Commercial - Contract in the District Court of Suffolk County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-----------------------------------------------------------X
THOMAS O’DONOGHUE,

Plaintiff, Index No.: 618297/2023

-against- ATTORNEY AFFIRMATION IN
OPPOSITION TO DEFENDANT’S
MOTION AND IN SUPPORT OF
PLAINTIFF’S CROSS-MOTION
TRICIA O’DONOGHUE,
(No Justice Assigned)

Defendant.
-----------------------------------------------------------X
ROBERT J. DEL COL, ESQ., an attorney duly licensed to practice law before the

various Courts within this State, hereby affirms the following to be true under the penalties of

perjury.

1. I am the attorney for Thomas O’Donoghue, the Plaintiff in this action and, as

such, I am fully familiar and acquainted with the facts and circumstances of this matter.

2. I most respectfully submit this affirmation pursuant to CPLR §2106 and in

support of the within cross-motion that seeks disqualification of the firm “Goldman and Maurer”

on the grounds that, in this particular, indeed unique instance, there is an unavoidable and

unwaivable conflict of interest that presents itself in the context of 22 N.Y.CRR §1200 Rule 3.7,

otherwise known as the “witness/advocate rule.” In fact, as argued later, given that the

Defendant here is also named in a criminal prosecution alleging that she forged Plaintiff’s

signature on loan documents directly related to this case, the “crime/fraud exception” to the

attorney/client privilege may also be at work. As I’m sure the Court can already conclude, there

is more to this case than opposing counsel would lead you to believe.

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3. Moreover, this submission will serve as opposition to Defendants’ motion

pursuant to CPLR §3211(a)(4)(7) and the uniquely frivolous call for sanctions which,

axiomatically, pursuant to 22 N.Y.CRR 130-1.1(c) requires sanctions be imposed on opposing

counsel for even making such a specious claim. (22 N.Y.CRR 130-1.1[c]) I want to be crystal

clear about my application for sanctions.

4. While it is my belief that Defendant’s motion has no vitality and is designed to

invoke sympathy toward Defendant and provoke bias against Plaintiff, it does not, standing

alone, rise to the level of being sanction-worthy. In my opinion, merely disagreeing with another

attorney is never grounds for sanctions. On the other hand, Defendant’s call for sanctions by

virtue of 22 N.Y.CRR 130.1-1(c) most definitely meets the threshold. Lawyers cannot be

permitted to pursue sanctions every time an adversary does something they dislike or disagree

with and this particular firm seeks sanctions in almost every motion they file. Factually, this is

the third instance where opposing counsel has pursued a frivolous request for sanctions. Some

Court somewhere has to teach them that the approach cheapens the application and it should not

be a mechanism to chill spirited litigation or zealous advocacy. To this point, any review of the

prevailing Appellate authority reveals that sanctions should be reserved for serious breaches like

submitting false affidavits or like here, a frivolous request for sanctions.

General Overview

5. The Complaint being challenged here asserts that on September 28, 2018, the

parties entered into a properly subscribed written agreement that contained a dependent covenant

where, in exchange for all of Plaintiff’s “right, title and interest” in a former marital residence,

Defendant agreed to be “solely responsible for the carrying charges” associated with the home.

It is alleged that Defendant breached the agreement by not paying the mortgage, principal,

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interest, and real property taxes and, because Plaintiff is the only party obligated under the note

and mortgage, he has been damaged by Defendant’s failure to pay. Moreover, as a consequence

of Defendant's actions, Plaintiff is now exposed to future litigation when the bank holding the

mortgage Defendant did not pay pursues a deficiency judgment. The Complaint also alleges that

the Defendant’s attempt to restructure an existing mortgage, one that Plaintiff is the sole obligor

of, by forging his signature on various loan restructuring documents, has likewise damaged him.

Finally, the Complaint seeks declaratory judgment to define and delineate rights and obligations

stemming from the parties’ agreement.

6. For clarity’s sake, Plaintiff reasons, because Defendant has asserted that, despite

the clear intent and wording of the agreement, she is not responsible for “all carrying charges”

relating to the residence she now owns and further, that the term “carrying charges" does not

include mortgage principal, interest, and real property taxes, declaratory judgment is the correct

remedy. I hasten to point out that I reject Defendant’s argument as specious and without merit,

she nonetheless is sticking to her preposterous position and an Order determining “the rights and

obligations” is now required.

Statement of the Case Presented

7. This is a breach of contract action coupled with an action for declaratory

judgment seeking simple and straightforward equitable remedies. It is styled as a plenary action

inasmuch as it is independent and differs substantially from a post-judgment matrimonial

proceeding, one commenced by the Defendant in this action, seeking to hold Mr. O’Donoghue in

contempt of a Judgment of Divorce. Admittedly, there is a cross-motion pending before Judge

Cartright wherein Plaintiff seeks to hold Defendant in contempt for failing to pay carrying

charges that Defendant was responsible for and, failing that, to adjudicate her in “default” which

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would permit a less drastic remedy than incarceration including, but not limited to, a judgment.

That said, as explained later, under these circumstances, in order to warrant dismissal,

Defendant’s superficial analysis fails the test.

8. What makes Defendant’s instant motion so particularly specious is counsel’s

attempt to conflate Plaintiff’s affirmative defense to an equally specious contempt application in

the context of a post-judgment matrimonial action with Plaintiff’s desire in this action to enforce

and define contractual entitlements and protections provided for in a written agreement.

Significantly, by virtue of the very agreement being enforced and interpreted here, the provisions

were “incorporated by reference, but not merged” into the Judgment of Divorce which, as

explained later, dispatches, with prejudice, opposing counsel’s principal contention vis à vis the

defenses asserted by Plaintiff in the contempt proceeding being identical to the claims asserted

here. Even Plaintiff’s cross-motion for a “default” does not match this Complaint which alleges a

breach and seeks indemnification and declaratory judgment.

9. Another fundamental concept lost upon opposing counsel is, a contempt

proceeding is inextricably linked to the existence of a valid Court Order with a clear mandate

while this action relates only to a written contract with enforceable terms. Very simply, “it is well

settled that either party can bring a separate plenary action after the Judgment of Divorce to

enforce or challenge the terms of the Stipulation of Settlement which is not merged into the

judgment.” This is so because the stipulation “survives as a separate contract.” Sacks v. Sacks,

220 AD2d 776 (2d Dept. 1995). Here, counsel’s entire motion ignores “well settled law” which,

in turn, strengthens Plaintiff’s argument that Defendant’s actual goal is to cast Plaintiff in such a

light that justifies dismissal as opposed to a legal entitlement to the relief.

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10. Importantly, the law firm that initiated the post-judgment contempt proceeding is

the same firm that has appeared here. Now, ordinarily this would not create any conflict or

witness/advocate problem but a central issue in this case will necessarily be whether or not

Defendant breached the agreement by forging documents seeking an extension of credit in

Plaintiff’s name and, as critical, whether or not it was her attorney, Ellen Maurer of “Goldman

and Maurer,” who put her up to it. A deeper discussion of this is reserved for elsewhere but,

suffice it to say for now, based upon documents and submissions already in Plaintiff’s

possession, Ms. Maurer’s testimony is unavoidable whether it be for the Plaintiff or, more

importantly, the Defendant herself. Under this scenario, the conflict is unwaivable and

unavoidable.

11. Aside from the disqualification of opposing counsel’s law firm, there are no

genuine or legitimate issues presented in this motion sequence. Here, we have a well-pled

complaint that seeks, inter alia, declaratory judgment and monetary damages (including

punitive) suffered as the result of Defendant’s breach, coupled with a reciprocal request to

sanction Defendant’s counsel for advancing a meritless demand for sanctions that is a per se

“frivolous motion for costs and sanctions” under 22 NYCRR 130.1-1(c). Indeed, given the

standards at work, counsel’s absurd arguments offered in support of the CPLR §3211(a) motion

and the Complaint’s “4 corners,” there is a strong argument to be made for sanctions relating to

harassing and vexatious litigation tactics but, it is the initial sanction request that should remain

the focus.

12. Nevertheless, with respect to the post-judgment contempt application pending

before Judge Cartright, there is very little, if any, overlap with this action. First, the very nature

of the proceeding is different. This is, inter alia, a breach of contract action where Plaintiff is

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asserting various legal and contractual rights and entitlements whereas in the contempt matter

described by opposing counsel, Plaintiff is defending himself and his defense is, to a limited

extent, based upon Defendant’s forgery which unbelievably has been admitted by her own

attorney. Moreover, the remedies available to a party seeking contempt vary widely from those

found in the common law or those that are statutorily provided such as declaratory judgment

(CPLR §3001). So, to be clear, in the pending contempt applications against Defendant, the relief

sought varies from what is reflected in this plenary action.

13. It is readily apparent from Defendant’s submission that opposing counsel has let

the worst litigation tactics seen in matrimonial litigation spill into an otherwise sophisticated and

nuanced contract and equitable remedy matter. This is unfortunate but, having experience with

opposing counsel’s firm, it’s not uncharacteristic. Indeed, this happens to be the third instance

where I’ve had to resort to 22 N.Y.CRR 130.1-1(c)’s “reciprocal sanction” provision which

provides that a frivolous application for counsel fees is, in and of itself, sanctionable.

Nevertheless, and that said, this is a “contract case” and I will treat it with the respect it deserves

and not reduce my submission to gratuitous ad hominem attacks or the hyperbole that infects and

renders matrimonial litigation a rock-throwing contest as opposed to an intellectual pursuit or

competing legal theories and thoughtful analysis.

Defendant’s entire legal thesis is wrong.

14. At “Article III” (page 5) of the stipulation, which is a freestanding contract, the

following language appears:

“However, notwithstanding said incorporation, the provisions of this stipulation of
settlement shall survive any judgment, order or decree and shall not merge therein, and
this stipulation of settlement may be independently enforced.” (Emphasis added)
(NYSCEF Doc. #10 at page 10)

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15. Now, the first absurdity that must be dispatched is opposing counsel’s statement

at paragraph “10” asserting that the “matrimonial stipulation of settlement dated September 2018

which was merged into the Judgment of Divorce” presents the clearest case, among many, of

Defendant’s desire to simply re-write the agreement in a way that benefits her.

16. Obviously, in counsel’s haste to launch an attack in the form of a bogus sanction

request, he did not even read the agreement. Sacks v. Sacks, supra.

17. Equally true is, it is opposing counsel’s failure to comprehend the distinction

between enforcing a Court Order via the Judiciary Law (contempt) and the enforcement of a

contractual right vis à vis the award of damages or an equitable remedy, is where each of the

arguments advanced in support of Defendant’s motion literally fall to pieces.

18. Here, the agreement in question has a specific provision that allows for

enforcement of the terms in the “contract” sense of the word and, like all orders of a Court, the

subsequent judgment can be enforced via a contempt. These two remedies are quite different

inasmuch as there are distinct consequences, discreet defenses, varying burdens of proof, and

different elements, indeed there is no cross-over whatsoever. Take, for example, the elements of

contempt and compare them with those inherent in a breach of contract action.

19. In order for a party to establish a contempt of Court, there are 4 essential

elements: (i) a lawful order of the Court, clearly expressing an unequivocal mandate; (ii) it

appears with reasonable certainty that the Order has been disobeyed; (iii) the party to be held in

contempt must have knowledge of the Court’s order and finally; (iv) prejudice to a right of a

party to the litigation must be demonstrated. El-Dehdan v. El-Dehdan, 26 NY3d 19, 29 (2015).

Moreover, the burden of proof necessary to establish a contempt is “clear and convincing

evidence.” Id at 29. On the other hand, in order to prevail on a breach of contract, a party must

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prove the elements by mere preponderance. In this case, we are dealing with a “dependent

covenant” inasmuch as the provision constitutes a “contract within a contract” as it specifically

relates to the house. Hence, once Plaintiff executed the deed and signed the home over to

Defendant her reciprocal obligations relating to the home vis à vis the payment of all carrying

charges were fixed. Meanwhile, in order to make out a case for a breach of contract, the essential

elements are: (i) a valid contract; (ii) performance (here, the dependent covenant); (iii)

Defendant’s breach; and (iv) damages. DAC v. Razower, 112 AD3d 204, 206 (2d Dept. 2013).

As any first-year law student could see, a breach of contract and a contempt application or, better

yet, an affirmative defense asserted in the face of a contempt application, share no common

ground.

20. The last distinction that separates a contempt application and a contract dispute

are the available remedies. Indeed, the object of contempt is punishment, including the drastic

remedy of incarceration. On the other hand, the objective in a breach of contract action is to

restore the non-breaching party to this pre-breach position or, in the same vein, to deliver the

non-breaching party “the benefit of his bargain.” Given these disparities, Plaintiff is entitled to

pursue his contractual remedies, including declaratory judgment vis à vis Defendant’s obligation

to pay all carrying charges.

21. Plaintiff reasons that once Defendant became the fee owner of the home, she

stepped into Plaintiff's shoes insofar as all of the debt related to the home. Put another way, when

negotiating to take ownership and control over the residence Defendant received both the honey

and the vinegar – and opposing counsel’s tap dance around this common sense, everyday

transaction is nonsensical. Plaintiff asserts that Defendant’s agreeing to be “solely responsible

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for the carrying charges” means, among other things, the mortgage payments, arrears, real

property taxes, and interest and to say otherwise is risible.

22. Accordingly, since most, if not all, of opposing counsel’s arguments are

dispatched by this simple analysis, which is applicable to its entire motion to dismiss, I will turn

my attention to the call for sanctions after I first lay out the standards at work in this motion,

something opposing counsel either intentionally ignored or simply does not know they exist.

Standards at Work

23. By a straightforward application of the applicable Appellate authority, there are

only two outcomes. First, the motion for dismissal will be denied and second, there will be a

sanction imposed against Defendant’s counsel.

(i) The law surrounding commencing a plenary action

24. “A party to a stipulation that is incorporated by reference but not merged into a

Judgment of Divorce cannot challenge enforceability by way of motion but, rather must do so by

commencement of a plenary action.” Marshall v. Marshall, 124 AD3d 1314, 1317 (4th Dept.

2015). On the other hand, a party seeking to enforce the terms of such a stipulation may do so

either by motion to enforce the judgment or plenary action. Siegel v. Siegel, 197 AD2d 569 (2d

Dept. 1993). Here, as was his contractually guaranteed right, Plaintiff seeks damages reflecting

the amount suffered related to Defendant’s breach and declaratory judgment imposing a clear

and enforceable obligation on Defendant’s part to pay all associated carrying charges on the

home she bargained for and indemnification of Plaintiff for future damages.

(ii) The governing law regarding pre-answer motions to dismiss

25. In the context of a CPLR §3211 motion to dismiss, the Court’s “task is to

determine whether Plaintiff’s pleadings state a cause of action. The motion must be denied if

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from the pleadings’ four corners factual allegations are discerned which taken together manifest

any cause of action cognizable at law. In furtherance of this task,” the Court should “liberally

construe the complaint and accept as true the facts alleged in the Complaint and any

submissions in opposition to the dismissal motion.” 511 N. 232nd Owners v. Jennifer Realty, 98

NY2d 144, 152 (Ct. App. 2002). (Internal citations and quotations omitted.)

26. In support of Defendant’s motion, there is no mention of this standard. Instead,

there is irrelevant matrimonial mudslinging seemingly offered as justification for depriving

Plaintiff his day in Court in the context of this Complaint.

27. In support of the application that relies on CPLR §3211(a)(4), opposing counsel

points to the branch of a motion before Judge Cartright that, as an alternative to incarceration,

seeks to sustain a “default” against Defendant and enter judgment. Plaintiff reasons that, because

the two proceedings, here a civil action and what rests before Judge Cartright which is, for all

intents and purposes, a summary proceeding, the two actions are sufficiently distinct from one

another and do not fall into the statutory paradigm of CPLR §3211(a)(4).

28. It cannot go overlooked that CPLR §3211(a)(4) is “permissive” in that it provides

when there is “another action” for the same cause of action…”the Court need not dismiss upon

this ground but may make such an Order as justice requires.” Here, perhaps a denial of

Defendant’s motion with leave to submit a subsequent motion in the event Plaintiff’s “default”

application is successful and the Court (Cartright, JSC) issues a judgment. Equally true is, given

the process of discovery often takes a year or more, and the burden of proof is different, this

Court could elect to reserve decision vis à vis dismissing the breach of contract cause of action

while discovery proceeds and see what happens in the “default” motion. What is self-evident is,

dismissal is not authorized under these peculiar facts.

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29. With respect to the declaratory judgment cause of action, I discuss this further

elsewhere but, suffice it to say, this is a classic case for declaratory judgment inasmuch as

because it was assumed by all that the debt traveled with the title, there is no provision in the

stipulation that divides up what amounts to nearly a million dollars. Yes, it is clear to everyone

but Defendant and her counsel that being “solely responsible for all carrying charges” related to

the home includes mortgage principal interest and real estate taxes, opposing counsel is disputing

this everyday, common sense, and universally accepted definition. Accordingly, as pointed out

below, this is just the type of case declaratory judgment is tailored to fit.

30. In the context of “a pre-answer motion to dismiss a declaratory judgment action,

the sole issue is whether the Plaintiff has set forth a cause of action for declaratory relief,

without consideration as to whether he or she will ultimately succeed on the merits.” Hallock v.

State of New York, 32 NY2d 599, 603 (1973); Jacobs v. Cartalemi, 156 AD3d 635 (2d Dept.

2017).

(iii) The rule governing frivolous motions for costs and sanctions

31. 22 N.Y.CRR 130.1-1(c)(3) provides “frivolous conduct shall include making a

frivolous motion for costs and sanctions under this section.” Obviously, the drafters understood

the significance and serious nature of seeking sanctions – something opposing counsel and his

client might learn if they are made to suffer the consequences of their own misconduct. Of

particular relevance to this request for sanctions is 22 N.Y.CRR 130.1-1(c)(3)’s provision that,

when deciding on a call for sanctions, a Court should consider “whether or not the conduct was

continued when its lack of legal or factual basis was apparent, should have been apparent or

was brought to the attention of counsel or the party.” Here, an email was sent prior to filing this

cross-motion advising of the risks if the motion was not withdrawn and more pointedly, that

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there was no reasonable view of CPLR §3211 that supports dismissal and further, the call for

sanctions was, in and of itself, frivolous. (Exhibit “1”) The fact that opposing counsel continued

pressing his case neatly fits the definition of frivolous conduct.

32. There is no doubt that opposing counsel’s call for sanctions is utterly frivolous

and intended to harass, burden, and cost Plaintiff unnecessary legal fees. Accordingly, costs

associated with this motion should be imposed in an amount determined by the Court.

(iv) The law surrounding the interpretation and enforcement of contracts

33. It is well settled that clear and unambiguous contracts should be enforced

according to their terms and plain meaning. Signature Realty v. Tallman, 2 NY3d 810, 811 (Ct.

App. 2004); Greenfield v. Philles Records, 98 NY2d 562, 569-570 (Ct. App. 2002); Fiore v.

Fiore, 46 NY2d 971, 973 (Ct. App. 1979). Moreover, it is a well settled and eminently sensible

proposition that Courts are to enforce contracts so they are given life, not to obtain a desired

result by a tortured interpretation. Hooper Associates v. AGS Computers, 74 NY2d 487, 491 (Ct.

App. 1989); Williams Press v. State, 37 NY2d 434, 440 (Ct. App. 1975); Tri-Messine Inst. v.

Telesector Res. Group, Inc., 287 AD2d 558 (2d Dept. 2001). It is equally settled that, in the

absence of some patent defect or illegality, Courts should refrain from granting any relief

inconsistent with the clear provisions of an otherwise valid and enforceable agreement. Evans v.

Famous Music, 1 NY3d 452, 458 (Ct. App. 2004); Sutton v. East River Savings Bank, 55 NY2d

550, 555 (Ct. App. 1982); Cappello v. Cappello, 286 AD2d 360 (2d Dept. 2001). Likewise,

Courts should take caution not to impose burdens on the parties that do not naturally flow from

an otherwise explicit contract. Salvano v. Merrill-Lynch, 85 NY2d 173, 182 (Ct. App. 1994); see

also: Red Ball Interior Demo v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999). In this case, what

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is set forth in writing is “a complete agreement with a manifest expression of each party’s intent”

as required to be enforceable. Evans v. Famous Music, supra at 456.

34. On the other hand, when confronted with a contractual term or provision that is

subject to differing but equally reasonable interpretations, the Court should turn to extrinsic

evidence. Importantly, “extrinsic evidence is merely an interpretive tool that cannot be used to

create a contractual right independent from the express source in the parties’ agreement.” Aenas

McDonald Police Benev. v. City of Geneva, 92 NY2d 326, 333 (1998). When evaluating

extrinsic evidence, “a court will try to find a meaning that one party either knew, or had reason

to know, that the other party gave to the ambiguous term” and “the parol evidence rule will not

bar admission of evidence offered to clarify the ambiguity so long as the evidence is not

inconsistent with the express terms of the contract and the witness is competent to offer evidence

concerning the intent at the time they contracted.” Deroche v. Methodist Hospital, 249 A.D.2d

10 438 (2d Dept. 1998).

(v) The law surrounding declaratory judgment (CPLR §3001)

35. The fact that opposing counsel never mentions the cause of action that seeks

declaratory judgment is fatal to the motion. In this Complaint, Plaintiff seeks declaratory

judgment against Defendant in order to obligate her to: (i) pay all outstanding mortgages arrears,

taxes, penalties, and interest (“the carrying charges”); and (ii) to impose upon Defendant the

obligation to indemnify Plaintiff in the event he is sued by the bank for a deficiency judgment.

36. In New York Public Research v. Carey, a case found at 42 NY2d 527, 530 (1977),

the Court noted:

“The need for judicial intervention is obvious when, because of the actions of one of the
parties, a dispute arises as to whether there has been a breach of duty or violation of the
law. Then the courts can declare the rights and obligations of the parties, and if a breach

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is found, compel compliance, award damages or otherwise order appropriate action to
be taken.

CPLR 3001 provides that the supreme court may render a declaratory judgment having
the effect of a final judgment as to the rights and other legal relations of the parties to a
justiciable controversy whether or not further relief is or could be claimed (see Peters v
Smolian, 154 AD3d 980, 983 [2nd Dept 2017] citing CPLR 3001). To constitute a
justiciable controversy, there must be a real dispute between adverse parties, involving
substantial legal interests for which a declaration of rights will have some practical
effect (see Cong. Machon Chana v Machon Chana Women's Inst., Inc., 162 AD3d 635
[2nd Dept 2018], quoting Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept
2010]).”

37. This standard is uniquely fitting here inasmuch as it is yet unknown if the bank is

going after Plaintiff and for what. Nevertheless, because it is Defendant's breach, this Court

should identify each parties’ “rights and obligations” so when it happens, everyone knows where

they stand. In New York Public Research, the Court clarified the function of a declaratory

judgment when it ruled:

“When a party contemplates taking certain action a genuine dispute may arise before any
breach or violation has occurred and before there is any need or right to resort to
coercive measures. In such a case all that may be required to insure compliance with the
law is for the courts to declare the rights and obligations of the parties so that they may
act accordingly. That is the theory of the declaratory judgment action authorized by
CPLR 3001.”

38. In this case, Plaintiff seeks a declaratory judgment obligating Defendant to pay all

carrying charges despite Plaintiff being the only party to the mortgage and note together with an

indemnitor for any losses he suffers, including counsel fees.

39. In this case, there is a need for the Court to declare Defendant is obligated to pay

all carrying charges and that includes all outstanding mortgage principal, interest, and taxes.

There is a need to declare Defendant indemnify Plaintiff against any future deficiency judgment

and expenses, including legal, if he is forced to defend himself, and finally, there is a need to

declare Defendant is an indemnifier so she can be brought into such future litigation as a party.

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40. It is remarkable that the cause of action seeking declaratory judgment was not

even mentioned by opposing counsel, which is illustrative of the true intent of the motion, which

is to harass Plaintiff.

41. It should not go overlooked that a party to a declaratory judgment action, like a

breach of contract action, is entitled to: (i) full Article 31 discovery and, more importantly (ii) a

jury trial. This is simply not the case in a post-judgment contempt proceeding and provides

another reason to deny Defendant’s motion.

(vi) The law surrounding the implied covenant of good faith and fair dealing

42. Another cause of action ignored by opposing counsel is the alleged breach of the

implied covenant of good faith and fair dealing. Without getting too far into the weeds on this,

“every contract in New York contains an inherent covenant of good faith and fair dealing”

protecting against a party “destroying or injuring the right of the other party to receive the fruits

of the contract.” 511 W. 23rd Owners Corp. v. Jennifer Realty, 98 NY2d 144, 153 (2002).

43. “Implicit in every contract is a promise of good faith and fair dealing.” Rowe v.

Great Authentic Pacific Tea Company, 46 NY2d 62 (1978), the covenant is “breached when a

party acts in a manner that although not expressly forbidden by any contractual provision would

deprive the other party the benefit of the bargain.” Jaffe v. Paramount Communications, 222

AD2d 17, 22 (1st Dept. 1996).

44. In this Complaint, Plaintiff alleges that: (i) there is no provision prohibiting

Defendant from forging Plaintiff’s signature on loan documents, nor it is contemplated that

Defendant would not make a single payment toward the carrying charges on the home she

negotiated to be titled in her own name, stranding Defendant with the financial trainwreck she

caused. Finally, it is under this cause of action that the drastic impact on Plaintiff’s credit-

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worthiness, would come into play, as well as the ascertainable damages he has sustained because

of the damage to his credit.

(v) The law surrounding consolidation and joinder

45. Although a motion pursuant to CPLR 602(a) is addressed to the sound discretion

of the trial court (see Kaladze v Ocean Park Acquisition, L.P., 203 AD3d 1151, 1152; Rhoe v

Reid, 166 AD3d 919, 921), consolidation or joinder for trial is favored to avoid unnecessary

duplication of trials, save unnecessary costs and expense, and prevent an injustice which would

result from divergent decisions based on the same facts (see Robinson v 47 Thames Realty, LLC,

158 AD3d 780, 781; Best Price Jewelers.Com, Inc. v Internet Data Stor. & Sys., Inc., 51 AD3d

839, 839). "Where common questions of law or fact exist, a motion [pursuant to CPLR 602(a)] to

consolidate [or for a joint trial] should be granted, absent a showing of prejudice to a

substantial right by the party opposing the motion" (Disa Realty, Inc. v Rao, 198 AD3d 869, 871

[internal quotation marks omitted]; see Wilson v Perlman, 185 AD3d 984, 984).

46. When considering CPLR §602(a), the most important factor is “prejudice to a

substantial right of a party.” In this case, that means a jury trial and full Article 31 disclosure. In

all candor, I do not care who presides over this matter but am protective of Plaintiff’s rights and

insist he be afforded his day in Court. Indeed, whether or not Judge Cartright actually wants this

case and all that comes with it (discovery and jury trial) is, I suppose, entirely up to her and the

sound discretion of the Court.

The Complaint

47. The Complaint being challenged by the Defendant asserts, inter alia, a very

simple breach of contract claim. It cannot be disputed that on September 28, 2018, the parties

made an agreement wherein, in exchange for Plaintiff’s equitable interest in the marital

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residence, Defendant would be solely responsible for all associated carrying charges. (NYSCEF

Doc. #10 at page 18) The Complaint initially asserts that since the date Defendant gained

permanent exclusive occupancy on September 27, 2018 or, at the very latest, the date of transfer,

September 20, 2019, while obligated to pay, Defendant has not made a single payment toward

the carrying charges, i.e. mortgage principal, interest, and real estate taxes and further, as

opposed to re-financing in her own name, Defendant committed a provable act of perjury in

seeking to re-finance in Plaintiff’s name. (Exhibit “2”) Moreover, taking the plain meaning of the

agreement and acknowledging circumstances surrounding the creation of the agreement, while

Defendant became obligated for all of the associated debt she benefitted by securing all of the

value and equity. Put another way, this agreement represents an exchange of equity for debt –

something that happens every day in real estate transactions and matrimonial litigation. Indeed, if

the debt did not follow the equity, we would be seeking to invalidate the agreement as being

unconscionable. Finally, inasmuch as the provision at hand is a dependent covenant, meaning

Defendant’s obligation to assume all associated debt was irreversible once she took title, there is

no defense to the breach of contract claim as it relates to the payment of all carrying charges

inasmuch as the contract’s clear language states she is in the party “solely” responsible to pay

them. (NYSCEF Doc # 10 at page 18)

48. Moreover, set forth in the same agreement is a covenant that neither party “will

hereafter incur any debt charge or obligation or liability whatsoever…” By this Complaint, it is

alleged that Defendant’s failure to make the mortgage payments, which is in Plaintiff's name

alone, breached this provision as well (NYSCEF Doc. #10 at page 19, ¶¶5 and 6).

49. Remembering that contracts are not to be read in a way that reaches either an

unconscionable or tortured result, there is only one reasonable conclusion to draw. Here,

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Defendant negotiated to gain ownership and to stick Plaintiff with all the associated debt while

Plaintiff has the benefit of ownership is both an unconscionable and tortured result. To put a

finer point on this, by applying well-settled notions of matrimonial law, in the event the home

was sold back in 2018, the debt would have obviously been considered “marital debt” and

satisfied with the proceeds of sale. Alternatively, the party taking title would assume the other

spouse’s one-half of the debt. Here, Defendant and her counsel want this Court to read the plain

words of the agreement in a way that is absurd and actually creates an unconscionable agreement

out of one that, on its face, is not.

50. Based upon the plain language appearing in the agreement and Defendant’s

obvious breach, the Complaint advances four causes of action. First is a plain vanilla breach of

contract action that seeks damages in the form of an amount equal to all the outstanding carrying

charges associated with the home that Defendant did not pay, but Plaintiff remains obligated. On

this cause of action, Plaintiff seeks punitive damages – something not available in the contempt

motion practice. Second is a cause of action claiming Defendant’s failure to either remove

Plaintiff from the mortgage via a debt restructure or make a single payment is demonstrative of a

breach of the covenant of good faith and fair dealing. Coupled with Defendant’s forgery, there is

ample evidence, even at this early stage, to overcome the instant motion to dismiss. Likewise,

this remedy is not available to Plaintiff in the context of the contempt proceeding. The third

cause of action seeks declaratory judgment compelling Defendant to indemnify Plaintiff for

future losses suffered by Plaintiff as a result of Defendant's breach. The Complaint asserts that at

the time of making the agreement, no one could have foreseen such a drastic breach, including

forging Plaintiff’s name to loan documents, and therefore no remedy is provided in the

agreement, and the proper remedy is declaratory judgment. Again, this remedy is not available to

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the Defendant in the contempt motion sequence. Finally, the fourth cause of action is for breach

of contract insofar as the payment of counsel fees is concerned. It is yet to be determined if

Plaintiff will have to defend himself in an action commenced by the bank seeking a deficiency

judgment on a debt that Defendant contracted to undertake. Accordingly, this cause of action is

more akin to an indemnification than anything else and, again, not available by simple motion

practice.

Argument

51. In support of the motion to dismiss, opposing counsel makes conclusory

assertions like “there is no legitimate claim to damages, they are fraudulently fabricated.”

(NYSCEF Doc. #7 at ¶1b) Next, opposing counsel asserts at ¶2 that the relief sought here “is the

same relief before Judge Cartright.” This is simply not true. In the context of the contempt

application, as an alternative to incarceration, there is an application for a money judgment.

52. Equally true is, in the context of a contempt motion a litigant is: (i) not entitled to

a jury trial; or (ii) punitive damages. Standing alone, this is sufficient to deny the application

insofar as CPLR §3211(a)(4) is concerned.

53. Moreover, in the contempt motion sequence, no request whatsoever for

declaratory judgment or indemnification for damages suffered in the event Plaintiff is sued by

the bank for a deficiency judgment regarding the note he continues to be responsible for. Indeed

Case Info

Judge

Robert F Quinlan Track Judge’s New Case

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Document Filed Date

November 13, 2023

Case Filing Date

July 26, 2023

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Motion-Secondary: Thomas O'Donoghue v. Tricia O'Donoghue

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