Attorney James J. Nolletti's Legal Cases

Family

Rotker v Rotker, 195 Misc. 2d 768

Dec 15, 2004

OUTCOME:

An attorney who has been discharged without cause, and who has satisfied the conditions precedent to earning a fee, is entitled to recover the amount of his or her compensation in three ways: by the as ... sertion of a retaining lien, by the assertion of a charging lien, or by commencing a plenary action. A retaining lien, which attaches automatically upon the commencement of the representation, is a security interest in any documents or other items of the client that are in the possession of the attorney and is extinguished when the possession terminates other than by court order. A charging lien is a security interest in the favorable result of the litigation. It attaches automatically upon the interposition of the claim, whether in a complaint or a responsive pleading. N.Y. Jud. Law Â§ 475. Where either lien is asserted, the attorney is entitled to a prompt hearing to fix the amount of the lien. In a New York domestic relations action in which a discharged attorney holds a retaining lien, if, at the conclusion of a hearing regarding cause for discharge, it is found that there was cause for the discharge, the matter is resolved, because both the entitlement of the plaintiff's former attorneys to recover their fee and their retaining lien are defeated and the file must be delivered immediately to incoming counsel. If, on the other hand, the issue of cause for the discharge is resolved in favor of the client's former attorneys, the court must address the issue of exigent circumstances, such as indigency, which, if found, would justify directing the immediate release of the file. In the absence of exigent circumstances, the court must, before requiring the release of the file, either determine the amount of the fee to which the former attorney is entitled and direct its payment or protect the fee claim by identifying and sequestering property sufficient to satisfy it. Once adequate security for the fee claim, other than the file, is in place, the purpose of the lien is satisfied and the fee can be determined otherwise.

Family

In the Matter of Jessica M. Hutchison, Appellant, v. Albert J. Pirro, Respondent, 11 A.D.3d 465; 783 N.Y.S.2d 381

Oct 04, 2004

OUTCOME: Dismissed

Courts--Family Court--Jurisdiction.--Family Court did not have subject matter jurisdiction to entertain petition for enforcement of Indiana judgment and upward modification of child support award issue ... d by Indiana Superior Court--when Westchester County Family Court proceeding was commenced on August 1, 2002, subject matter jurisdiction was vested solely in Indiana Superior Court; March 13, 2003, determination of Indiana Superior Court that it no longer had jurisdiction followed filing of objections herein; Family Court's denial of objections was proper on record then presented and known to it--appellant's belated attempt to apprise Family Court of ultimate disposition of Indiana Superior Court proceeding by faxing copy of Indiana Superior Court's March 13, 2003, determination on very date Family Court issued its ruling was unavailing; Indiana Superior Court's ruling was not part of record upon which Family Court's March 18, 2003, order was made.

Family

Jennifer A. Castro, Appellant, v. Joseph J. Castro, Respondent, 292 A.D.2d 556, 739 N.Y.S.2d 593

Mar 25, 2002

OUTCOME: The order of the trial court was modified.

The appellate court held it was axiomatic that custody determinations were to be made upon consideration of all relevant circumstances to reach the disposition that promotes the best interests of the c ... hildren. The analysis of the various factors to be taken into account in deciding a custody question were best made by the trial court, which was in the most advantageous position to evaluate the testimony, character, and sincerity of the parties. The trial court's determination was not to be disturbed unless it lacked a sound and substantial basis in the record. The appellate court's review of the record supported the trial court's conclusion that both the mother and father were responsible and loving parents, but that the father would offer the children the best opportunity to separate, individuate, and grow into their own persons, without interfering in the maintenance of positive relationships with their mother.

Family

Coppola v Coppola, 514 NYS 2d 754

Apr 27, 1987

OUTCOME: Money Judgment against spouse for legal fees

Denial of wife's prior application for pendente lite relief in divorce action did not bar, as law of case, later application where wife experienced genuine change of circumstances.

Family

Mahoney Buntzman v Buntzman, 13 Misc. 3d 1205A; 824 N.Y.S.2d 755

N/A

OUTCOME: Trial Court's Decision Appealed by both parties.

A trial of this action was conducted between October and December of 2005. While the Court was considering the post-trial submissions of the parties, defendant filed an order to show cause seeking to r ... eopen the trial so that the Court could consider post-trial devaluation of publicly traded stock shares, which was granted. In addition the Court decided several other issues related to Equitable Distribution, Valuation Dates as related to Active/Passive Assets.

Family

Alexander Ekstra v Melissa Ekstra, 2008 NY Slip Op 2104; Supreme Court, Appellate Division, Second Department, 3/11/08

N/A

OUTCOME: Custody Order Reversed & Remanded

Custody award to plaintiff father reversed and matter remanded. This case involved an appeal after the trial court, relying largely on its evaluation of the credibility of the witnesses, awarded sole ... custody of the parties' two children to the father. The Appellate Division reversed the trial court's determination finding that it erred in excluding the forensic report of the court-appointed neutral psychologist. In light of the sharply conflicting testimony regarding the conduct of the parties,and evidence suggesting that the children were exhibiting behavioral problems, the court should not have rendered a custody determination without first receiving the report of the neutral forensic expert it had appointed. It was also determined that the trial court should have madea provision for the payment of the expert's fee as it indicated it would in the order appointing him.

Family

Mahoney-Buntzman v Buntzman, 51 AD3d 732

N/A

OUTCOME: Affirmed determination of trial court

This was an equitable distribution case which involved several complex issues including valuation date selection and burden as well as standard of proof, recoupment, quasi and judicial estoppel, as wel ... l as appreciation of property and active-passive distinction.

Family

Mahoney-Buntzman v Buntzman, 12 NY3d 415

N/A

OUTCOME: Modified and remitted to Appellate Division

The decsion on this appeal by New York State's highest court, the Court of Appeals, reversed the intermediate appellate court and established new law in this state by denying recoupment of the husband' ... s expenditures during this marriage to satisfy his decretal obligations under a prior divorce judgment, such as maintenance and child support. In addition, the Court of Appeals concluded that the burden of proof for establishing the character of an asset as "active" or "passive" which, in turn will determine whether the post commencement appreciation in value constitutes separate property is imposed upon the party claiming that the post-commencement increase in value is separate property and not subject to eaquitable distribution. The Court further established that parties are equitably estopped from asserting positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns.

James J. Nolletti's Legal Cases (8)

Rotker v Rotker, 195 Misc. 2d 768

In the Matter of Jessica M. Hutchison, Appellant, v. Albert J. Pirro, Respondent, 11 A.D.3d 465; 783 N.Y.S.2d 381

Jennifer A. Castro, Appellant, v. Joseph J. Castro, Respondent, 292 A.D.2d 556, 739 N.Y.S.2d 593

Coppola v Coppola, 514 NYS 2d 754

Mahoney Buntzman v Buntzman, 13 Misc. 3d 1205A; 824 N.Y.S.2d 755

Alexander Ekstra v Melissa Ekstra, 2008 NY Slip Op 2104; Supreme Court, Appellate Division, Second Department, 3/11/08

Mahoney-Buntzman v Buntzman, 51 AD3d 732

Mahoney-Buntzman v Buntzman, 12 NY3d 415