Cause to be Submitted__________________________________________________________________________________

New York Supreme CourtAppellate Division:Second Department

DOCKET NO. 2010-02664__________________________________________________________

ANGELA RENGA,Plaintiff-Respondent,

v.

GREGORY RENGA,Defendant-Appellant.

____________________________________________________________________

BRIEF OF PLAINTIFF-RESPONDENT

--------------------------------------------------------------------------------------------

LAW OFFICES OF SUSAN CHANA LASK Attorney for Plaintiff-Respondent

244 Fifth Avenue, Suite 2369 New York, New York 10001 (212) 358-5762

Supreme Court, Nassau County Index No. 200809/09

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES .................................................................. i

I. COUNTERSTATEMENT OF FACTS................................................ 1

II. ARGUMENT ............................................................................ 4

A. THE APPEAL IS FROM A PENDENTE LITE MOTION THAT SIMPLY ORDERED A TRIAL ON THE ISSUE OF ALLOCATION TO BE HELD IN THE FUTURE. NOT ONLY IS THERE NO APPEALABLE ISSUE BEFORE THIS COURT, BUT THIS DEPARTMENT DISAPPROVES OF APPEALS FROM PENDENTE LITE ORDERS........................................................................................ 4

B. BANKING LAW §675 IS NOT DETERMINATIVE IN A MATRIMONIAL CASE AS ALLOCATION CASE LAW MUST. BE CONSIDERED. NONETHELESS, THE STATUTE PROVIDES FOR THE EXACT FRAUD AND UNDUE INFLUENCE EXCEPTIONS CREATING THE REBUTTABLE PRESUMPTION

THAT PLAINTIFF HAS A RIGHT TO PRESENT AT TRIAL.......... 9

C. COSTS & SANCTIONS MUST BE IMPOSED........................... 14

III. CONCLUSION.................................................................................. 17

CERTIFICATION OF COMPLIANCE .................................................... 18

PROOF OF SERVICE ............................................................................ 19

TABLE OF AUTHORITIES STATUTES Page

CPLR §8107........................................................................... 14§130-1.1[c].............................................................................. 15,16Banking Law §675................................................................ 5,9,10,15Domestic Relations Law 236(B)......................................... 7

COURT DECISIONS

Aliano v. Aliano, 285 727 N.Y.S.2d 656.......................................................... 8

Angela R. v. Gregory R., 26 Misc.3d 1204(A), Slip Copy, 2009 WL 5178335, N.Y.Sup.,2009... 8Berger v. Berger,

125 A.D.2d 285, 508 N.Y.S.2d 572 (2 Dept.,1986)...................... 6,7,15Chamberlain v. Chamberlain,

24 A.D.3d 589, 593, 808 N.Y.S.2d 352 (2d Dept. 2005).................. 11,13Chiotti v. Chiotti, 12 A.D.3d 995, 785 N.Y.S.2d 157 (3rd Dept. 2004)................................ 14Crescimanno v Crescimanno,

33 A.D.3d 649 (2 Dept, 2006)............................................ . 12Fischedick v Heitmank,

267 AD2d at 592............................................................................... 9Garner v. Garner,

307 A.D.2d 510, 761 N.Y.S.2d 414 (3d Dept. 2003)...................... 6,11,12Kaye v. Kaye,

800 N.Y.S.2d 348 (Sup.Ct NY Cty, 2005).................. 11Lee v Lee,

131 AD2d 820................................................................... 6Levy v. Carol Mgt. Corp.,

260 A.D.2d 27, 698 N.Y.S.2d 226 (1999)........................ 16Matter of Stalter,

270 AD2d at 595-596...................................................... 19Matter of Wecker v. D'Ambrosio,

6 A.D.3d 452, 773 N.Y.S.2d 891 (2004)..................... 15Matter of Zecca,

544 N.Y.S.2d 40 (1989)................................................. 11Patanjo v. Patanjo,

216 A.D.2d 446, 628 N.Y.S.2d 736 (2 Dept.,1995)............. 7Piali v. Piali,

456, 668 N.Y.S.2d 711............................................................. 8

TABLE OF AUTHORITIES (cont’)

\

Richmond v. Richmond, 144 A.D.2d 549 (2d Dept, 1988),............. 12

Schlosberg v Schlosberg, 130 AD2d 735................................................................. 6

SM v. MM, 824 N.Y.S.2d 759 (Sup Ct Nass. Cty, 2006).................... 12

Tillinger v Tillinger, 141 AD2d 535; ............................................................. 6

Timoney v. Newmark & Co. Real Estate, 299 A.D.2d 201, 202, 750 N.Y.S.2d 271 (2002).............. 15

Yunis v. Yunis, 94 N.Y.2d 787, 789; 699 N.Y.S.2d 702, 721 N.E.2d 952 (1999)..... .9

Zheng v. Pan, 803 N.Y.S.2d 446................................................................... 8

I. COUNTERSTATEMENT OF FACTS

Plaintiff-Respondent, Angela Renga, and Defendant-Appellant, Gregory

Renga, married in 1991(A30). In 1996, Plaintiff ,Angela Renga, suffered from

bacterial meningitis as a result of a medical malpractice (A30). She was left

permanently physically and mentally disabled. Some of her permanent injuries to

date are loss of hearing, stroke like conditions, her left side of her body is in pain,

severe headaches, deformed appearance leaving her hunched over and the right

side of her face droops, the pain prevents her from moving, she wears a black

contact in her right eye to prevent double vision, and she walks with a limp and is

unsteady (A30).

In December, 1997, as a result of her serious, debilitating injuries, Plaintiff

filed a medical malpractice complaint naming her as the plaintiff for her serious

injuries and naming her husband, Defendant, as a plaintiff spouse limiting his

claim to a derivative loss of consortium (A30). In 2003, a net settlement of 4.8

Million Dollars (the "Settlement") was made payable to Angela Renga and

Gregory Renga by her the medical malpractice attorney (A30). The Settlement

was never allocated according to Plaintiff’s injuries and Defendant’s derivative

claim (A30-31,39). The unallocated settlement in both of their names maintained

its status as unallocated by its deposit into a newly opened joint brokerage account

just for those funds (A38). 1

In 2007, the Defendant retained a Trusts and Estates attorney to fund a

family trust by splitting the unallocated Settlement from the joint account into trust

accounts containing equal amounts solely for the convenience of estate tax

planning to remain under the Federal Estate Tax death limits (A39). The trust

accounts were never commingled with marital funds, but used to withdraw equal

monthly amounts from each trust that were deposited to a joint Citibank checking

account to then pay marital and other expenses (A39-40).

On or about March 20, 2009, Plaintiff filed for divorce (A1). The divorce

Complaint alleges that Defendant engaged in fraud and undue influence with

respect to handling the Settlement at the time it was received and thereafter,

including deposits, withdrawals and other transactions he made (A30-31). On or

about July 25, 2010, Angela Renga filed a pendente lite motion requesting standard

pendente lite relief of exclusive occupancy and continued medical and life

insurance for her and the children (A19-20). The Pendente Lite Motion brought to

the lower court's attention that the Settlement required an allocation hearing to

consider the severity of Plaintiff's permanent injuries against Defendant’s

derivative claim of loss of consortium to the unallocated settlement (A20,24-25).

At the time the pendente lite motion was filed, a preliminary conference was not

held nor was a discovery schedule ordered.

On or about August 10, 2010, Gregory Renga filed an Affidavit and his

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attorney's Affirmation in opposition confirming the Settlement was never allocated

but was maintained unallocated in a joint account since received, then in 2007 it

was equally split into family trust accounts solely for the convenience of estate

planning purposes, where from those accounts money was deposited to Citibank,

which that account paid for marital expenses (A36 ¶1;A39-40 ¶10-11;A44 ¶12-13).

His papers made clear that no discovery at that early time was exchanged between

the parties nor was discovery before the lower court. He objected that the lower

court should not consider the pendente lite motion because Angela Renga's Net

Worth Statement was not yet submitted (A41). Gregory Renga never submitted a

cross-motion or any motion requesting relief to determine if the Settlement was

separate property. That issue was never before the lower court.

On September 1, 2009, the lower court issued a decision to the pendente lite

motion, and with respect to the Settlement held "this issue will be determined at

trial" (A35).

On or about October 1, 2009, Defendant filed a Motion for leave to reargue

the September 1, 2009 Order claiming that the lower court determined the

Settlement was separate property (A9-18). On or about November 16, 2009,

Plaintiff submitted opposition that the lower court never determined anything

about property except that the issue would be determined at trial (A85-95) and she

cross-moved for sanctions based on the fact that her counsel warned Defendant’s

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counsel that his motion for reargument was frivolous (A92).

On December 22, 2009, the lower court (a) confirmed that Defendant never

cross-moved for relief and that the Settlement should be determined separate

property (A6), (b) noted that Defendant’s papers admitted the Settlement was never

commingled with marital property (A6-7) and (b) held it "adheres to its original

decision and order dated September 1, 2009. Upon trial of the action, the court

will hear proof on the issue of the allocation of the 2003 personal injury settlement

proceeds between the parties."(A8).

On March 17, 2010, Defendant appealed the lower court’s December 22,

2009 decision confirming its September 1, 2009 decision that a trial was needed

(A2). To date, discovery in this case is not complete, depositions are not complete

and a trial has not been scheduled. On March 30, 2010 Plaintiff’s counsel sent

Defendant‘s counsel a letter warning that he should withdraw the appeal to avoid

sanctions and costs.

II. ARGUMENT

A. THE APPEAL IS FROM A PENDENTE LITE MOTION THAT SIMPLY ORDERED A TRIAL ON THE ISSUE OF ALLOCATION TO BE HELD IN THE FUTURE. NOT ONLY IS THERE NO APPEALABLE ISSUE BEFORE THIS COURT, BUT THIS DEPARTMENT DISAPPROVES OF APPEALS FROM PENDENTE LITE ORDERS

The September 1, 2009 and December 22, 2009 decisions both held that at a

trial regarding the Settlement issue would be heard. It did not decide the4

underlying issue of what was separate or marital property or allocation. It simply

held that a trial on the issue will be had. It will be at that trial that property will be

allocated, not allocated, determined separate or marital. It is not for this appellate

court to make that determination without any record from the lower court. Thus,

no appealable issue exists and Defendant’s appeal is frivolous. It is based on

nothing that occurred in the lower court when there has not been a trial. Because

this appeal is pure fiction, that is why Defendant’s entire Brief is contradictory and

actually makes the case against him. And the case is a trial on the issue is needed.

Notably, his entire Brief argues that Banking Law §675 applies and at the same

time he dismisses his entire position that there was a transmutation of property by

confirming that Banking Law §675 creates a rebuttable presumption. That is

just half the picture that dismisses Defendant’s appeal. The other half is the wealth

of matrimonial case law regarding allocating settlements that also has to be

considered. This is not a case in a vacuum of relying only upon Banking Law §675

regarding the status of joint accounts from estates, to partnerships to family

members opening joint accounts in any given situation. It is a matrimonial case

that has its own case law and intricacies involving equitable distribution

considerations and other principles unique to the matrimonial arena.

The baselessness of Defendant’s appeal is more evident by his argument

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raised in his opposition to Plaintiff's pendente lite motion that the lower court

should not address the pendente lite motion without Plaintiff’s financial

information. There Defendant confirmed that evidence did not exist to make a

determination on property at the time. Accordingly the lower court ordered the

issue will be heard at the time of trial. Appellant has unclean hands to argue then

that without financials the issue could not be decided and now argue here that this

financial issue should be determined by the appellate court.

For Defendant to raise the issue of property determination at the preliminary

pendente lite stage of the case when discovery never commenced, no less financial

information was not exchanged as admitted by Defendant, is as impossible and

improper for this appellate court to decide as it was for the lower court. Thus, the

very reason this Department disapproves of the practice of appealing orders

granting pendente lite relief. Tillinger v Tillinger, 141 AD2d 535; Lee v Lee, 131

AD2d 820; Garner v. Garner, 160 A.D.2d 833,554 N.Y.S.2d 267(2 Dept.,1990).

This Department holds that "appeals from the granting of pendente lite relief

are not favored in as much as it is clearly more expedient and less consuming of

both judicial time and that of the attorneys if counsel would promptly proceed to

trial." Berger v. Berger, 125 A.D.2d 285, 508 N.Y.S.2d 572 (2 Dept.,1986). "The

most expedient and best remedy for any perceived inequities in such awards is to

press for an early trial. Schlosberg v Schlosberg, 130 AD2d 735; Velocci v Velocci,

6

122 AD2d 265, 266; Lee v Lee, 131 AD2d 820, 821). This rule exists to avoid

exactly the type of piecemeal, frivolous appellate litigation at the pendente lite

stage of the case that Defendant creates in this appeal. It is also the rule because

there is no record for the Appellate Court to review, and it places the Appellate

Court in the improper position of making determinations that the lower court

should make by a trial where it could evaluate witness testimony, credibility and

evidence. Only after a trial and a record is established should the Defendant appeal.

It is clear law that when the parties have "sharply conflicting views of the

financial situation of the parties and a speedy trial would permit prompt

examination of the facts in far greater detail and allow a more accurate appraisal of

the situation of the parties than can be made on a motion for temporary relief.

Berger, at 286. Issues regarding "marital assets during the marriage is properly left

to the trial and pretrial discovery. Domestic Relations Law 236(B) (4)."

(emphasis added) Patanjo v. Patanjo, 216 A.D.2d 446, 628 N.Y.S.2d 736 (2 Dept.,

1995). In this case, no pretrial discovery was scheduled at the time of the pendente

lite motion, nor to date has it been completed. So we should not be in the appellate

court as it is unfair and prejudicial because a proper case has not been presented

and heard to even get to an appeal.

Defendant's appeal is a fiction. Any matrimonial counsel knows the law is

crystal clear that modifications of pendente lite awards should rarely be made by

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an appellate court, and then only under exigent circumstances, such as where a

party is unable to meet his or her financial obligations or justice otherwise requires.

Zheng v. Pan, 803 N.Y.S.2d 446; Aliano v. Aliano, 285 727 N.Y.S.2d 656; Piali v.

Piali, 456, 668 N.Y.S.2d 711. Here, there is no financial award that Defendant is

appealing from. There are no exigent circumstances. There was no discovery

exchanged nor a hearing or trial. Defendant's appeal is literally based on the lower

court's order directing a future event of a trial to be held to determine an issue. An

event that has not occurred yet. Despite that order being consistent with clear law,

Defendant egregiously filed an appeal not about an award, but to prevent the lower

court from holding a hearing to determine the award that could then be appealable.

Thus, we are before this Court on a decision that never happened. A decision that

Defendant fictionalized and is wasting party and judicial resources to explain to

him the obvious.

Defendant's filing is disturbing when not only is the law clear against his

appeal but the lower court took great pains to explain the law, the facts and

Defendant's misrepresentations of the law when it granted a second, thorough,

well-reasoned December 22, 2009 opinion for Defendant to follow. Angela R. v.

Gregory R., 26 Misc.3d 1204(A), Slip Copy, 2009 WL 5178335, N.Y.Sup.,2009

December 22, 2009). Despite the Lower Court's patience twice with Defendant's

improper demand for a decision on an issue sharply disputed by the parties before a

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trial was had, Defendant filed this appeal as a third improper bite at the apple in a

different forum. And Plaintiff has each time warned Defendant not to pursue his

reargument and now appeal as it is wasting the parties’ money to defend these

frivolous filings of Defendant and interfering with the case proceeding to trial.

Defendant's motive is to interfere with the due process of the lower court

proceedings in a flagrant attempt to get appellate review on a matter that has yet to

be heard by the lower court and without a record before this court. As “[o]nly with

such record articulation can appellate courts- especially intermediate appellate

courts with plenary fact, law and discretion power-exercise meaningful, consistent

and fair review of rulings” Yunis v. Yunis, 94 N.Y.2d 787, 789; 699 N.Y.S.2d 702,

721 N.E.2d 952 (1999).

B. BANKING LAW §675 IS NOT DETERMINATIVE IN A MATRIMONIAL CASE AS ALLOCATION CASE LAW MUST. BE CONSIDERED. NONETHELESS, THE STATUTE PROVIDES FOR THE EXACT FRAUD AND UNDUE INFLUENCE EXCEPTIONS CREATING THE REBUTTABLE PRESUMPTION THAT PLAINTIFF HAS A RIGHT TO PRESENT AT TRIAL.

Defendant's argument that Banking Law §675 gives this appellate court the

right to determine the unallocated settlement funds at issue as marital property is

frivolous. It is incredible how his entire Brief is based on that argument of the

statute being determinative of the property as transmuted to Defendant when he

simultaneously undermines his position throughout that it is actually only a

9

rebuttable presumption, to wit:

"The making of such deposit … shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding … of the intention of both depositors … to create a joint tenancy … The burden of proof in refuting such prima facie evidence is upon the party or parties challenging…" (Appellant Brief, p. 6) (emphasis added).

Thus, Banking Law §675 is a rebuttable presumption necessitating the very trial

the lower court held is needed in the future. When we are talking about rebuttable

presumptions that never reached trial, then we should not be in the appellate court

forcing it to do what has not been done yet by the proper forum-the trial court.

Defendant takes the illogical leap of claiming that "...the parties did place

their separate assets into joint names upon the deposit of their personal injury

settlement proceeds into a joint account. Thus, those proceeds became a marital

asset at the time of that deposit.” (Appellant Brief, p. 9.), while his entire Brief

contradicts that position by making clear that it is only a rebuttable presumption

and fraud and undue influence are the exception. Therefore, there is not a marital

asset just because Defendant says so.

The critical issue in this matrimonial action involves exactly what Banking

Law §675 makes exceptions for. Plaintiff’s Complaint in this action is based upon

fraud and undue influence. A presumption shifts the burden of proof to the other

party to either establish fraud, undue influence or lack of capacity pursuant to

Banking Law 675(b), (Matter of Stalter, 270 AD2d at 595-596) or tender direct or10

circumstantial proof to support an inference "that the joint account was established

as a convenience and not with the intention of conferring a present beneficial

interest on the other party to the account". Fischedick v Heitmank, 267 AD2d at

592; Matter of Zecca, 544 N.Y.S.2d 40 (1989). The presumption applies to joint

investment and brokerage accounts which are at issue in the case at bar.

Chamberlain v. Chamberlain, 24 A.D.3d 589, 593, 808 N.Y.S.2d 352 (2d Dept.

2005). Plaintiff has the right to rebut the presumption by the very trial the lower

court ordered in its decisions, not to be before the appellate court on something that

never happened.

It is incredulous that Defendant argues at page 14 of his Brief that Plaintiff

did not rebut the presumption when that was never an issue before the lower court

in the pendente lite motion in the first place. Defendant never noticed a motion to

raise that issue. A point noted by the lower Court as "The husband did not

cross-move for relief..."(A6) and “The Court notes that there is no allegation in the

papers submitted on the original motion, or on the within application, (referring to

the motion for leave to reargue), that the settlement proceeds were ever co-mingled

with marital funds.” (A6-7).

Defendant's cases cited in his Brief also dismiss his position as they were

decided after a trial on the issue. Defendant refuses to acknowledge that

matrimonial case law holds that unallocated personal injury settlements should be

11

allocated at a trial. Crescimanno v Crescimanno, 33 A.D.3d 649 (2 Dept, 2006);

Richmond v. Richmond, 144 A.D.2d 549 (2d Dept, 1988),SM v. MM, 824 N.Y.S.2d

759 (Sup Ct Nass. Cty, 2006), Kaye v. Kaye, 800 N.Y.S.2d 348 (Sup.Ct NY Cty,

2005). Here there was never a trial. The lower court’s decisions in the case at bar

properly direct that there will be a trial on the issue. Plaintiff wants her day in

court.

Defendant relies on the out of department case of Garner v. Garner, 307

A.D.2d 510, 761 N.Y.S.2d 414 (3d Dept. 2003). But Garner is factually

distinguishable. There an allocation of a personal injury settlement was made

before the divorce was filed. Here an allocation was never made. Consistent with

the law, the Garner allocation was plaintiff netting about $252,000 for his personal

injury and the defendant spouse received the customary ten percent thereof at

$27,672.95 on her derivative claim. The Garner court then made its decision after

a trial regarding the presumption of a joint account established after the allocation.

Defendant demands this appellate court decide both the allocation and the

presumption before the lower court even holds a trial. If that is the case, then the

appellate court might as well determine equitable distribution in the first instance.

However, it is not the function of the appellate court to hold trials and the reason

why this appeal must be dismissed. Trials are for the lower court which we are

waiting to schedule.

12

Matrimonial cases have their own intricacies best left for the lower court to

hear and decide after testimony and evidence is received and apply equitable

principles. That is exemplified in Garner which ultimately granted the entire

amount of the allocated personal injury funds to the injured party based on his

serious injuries and other evidence despite the presumption of a joint account being

established. Plaintiff can as well receive such an award if Defendant would not

interfere with her getting a trial and his filing of a motion and then appeal what he

obviously should not do until after the trial.

Another example of how important it is to permit the lower court to do its

job and allow Plaintiff her right to rebut the presumption at the trial on the issue, as

ordered by the lower court in its September 1 and December 22, 2009 decisions the

Defendant appeals, is this Departments holding in Chamberlain v. Chamberlain,

24 A.D.3d 589, 593, 808 N.Y.S.2d 352, 356 (2d Dept. 2005). Chamberlain holds

that deposits made as a matter of convenience to a joint account are not

automatically marital property. Chamberlain's facts were consistent with the facts

in this case involving parties depositing an unallocated settlement to a joint

investment account as a matter of convenience. Chamberlain found that a party

"overcame the presumption by establishing that he was the sole beneficiary of the

proceeds of the personal injury action, that the investment account into which the

funds were deposited, although in joint names, was managed solely by him, and

13

that the plaintiff had no involvement with the account other than one withdrawal

which she made at the defendant's direction. Garner v Garner, 307 AD2d 510, 761

NYS2d 414 (2003)." Id, at 593. In the case at bar, we need a trial, not an appeal, to

hear and review the testimony and evidence to reach any such findings.

Defendant’s attempt to frustrate the trial as ordered by the lower court by filing a

frivolous appeal is reprehensible.

Appellant cites Chiotti v. Chiotti, 12 A.D.3d 995, 785 N.Y.S.2d 157 (3rd

Dept. 2004) as holding that property placed in joint names becomes marital

property. That is not the case. Chiotti involved an inheritance and a gift of funds

from a parent, not an allocation issue of settlement funds. Chiotti was a holding

after a trial, which is consistent with the law and the lower court’s decisions that a

trial is needed.

C. COSTS & SANCTIONS MUST BE IMPOSED

CPLR §8107 permits costs in an appeal to the party obtaining a favorable

decision. Defendant has unclean hands to file an appeal on an issue that never

existed at the lower court so he can avoid the very trial that was ordered. In fact,

Plaintiff’s counsel warned Defendant’s counsel to withdraw his papers when he

moved to reargue because that was a frivolous. The lower court denied

Defendant’s argument then. Again, she warned Defendant’s counsel by her March

30, 2010 letter that this appeal was frivolous and he should withdraw. Defendant

14

refused to withdraw.

The Second Department has granted sanctions and attorney fees for the

pursuit of a frivolous appeal. Timoney v. Newmark & Co. Real Estate, 299 A.D.2d

201, 202, 750 N.Y.S.2d 271 (2002) (sanctions imposed for frivolous appeal where

defendants made efforts to warn party that action had no merit and should be

withdrawn). Any counsel, no less matrimonial counsel as Defendant’s counsel is,

knows the clear law that a prompt hearing resolves pendente lite issues, not an

appeal. We should not be here before the appellate court based on the law. In

Berger, supra, costs were awarded to respondent for the frivolous appeal of a

pendent lite order before a trial on the issue was ever had.

Defendant’s unclean hands are more evident by the entirety of his Brief

relying upon he singular frivolous argument that Banking Law §675 automatically

transmutes a joint account to marital property what it does not. Defendant actually

recites the exceptions of fraud and duress that create a rebuttable presumption to

joint accounts.

Pursuant to Part 130 of the Rules, frivolous appellate litigation may exist

where the appellate arguments raised are completely without merit in law or fact,

where the appeal is undertaken primarily to delay or prolong the litigation or to

harass or maliciously injure another, or where the party or attorney asserts material

factual statements that are false. §130-1.1[c]; Matter of Wecker v. D'Ambrosio, 6

15

A.D.3d 452, 773 N.Y.S.2d 891 (2004);Levy v. Carol Mgt. Corp., 260 A.D.2d 27,

698 N.Y.S.2d 226 (1999). The court may consider additional factors in

determining whether an appeal is frivolous as whether the appellant's conduct was

continued when its lack of merit was apparent or should have been apparent, and

the circumstances under which the conduct took place, including the time available

for investigating the factual or legal basis of the conduct.§130-1.1(c).

By the clear laws and facts contrary to Defendant’s appeal of a decision that

never happened, and his baseless argument undermining his own appeal, as well as

the fact that Plaintiff requested sanctions at the lower court level against

Defendant’s baseless reargument (A85), and warned Defendant to withdraw this

frivolous appeal since March 30, 2010, then sanctions, costs and attorney fees are

appropriate. Defendant’s appeal was designed to deride the lower court’s order in

line with clear law for a trial, and moreso, it was meant to obstruct, delay and

create unnecessary costs to harass Plaintiff. Costs that should be remitted to her as

but for Defendant’s frivolous filing after he was warned twice to withdraw,

Plaintiff had to retain counsel and spend money to oppose what should never have

been filed.

16

IV. CONCLUSION

For all of the forgoing reasons, the Appellant's appeal must be denied in its

entirety, with costs, sanctions and attorney fees.

Dated: New York, New York Yours, etc.,June 8, 2010 LAW OFFICES OF SUSAN CHANA LASK

______________________By: Susan Chana Lask, Esq.Attorney for Plaintiff-Respondent244 Fifth Avenue, Suite 2369New York, NY 10001(212) 358-5762

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CERTIFICATION OF COMPLIANCE

Susan Chana Lask, Esq, an attorney duly admitted to practice in the courts ofthe State of New York and in good standing with offices at 244 Fifth Avenue,Suite 2369, NY, NY 10001 states the following:

This computer generated brief was prepared using a proportionallyspaced/monospaced typeface.

Name of typeface: Times New Roman

Point size: 14

Line spacing: Double

The total number of words in the brief, inclusive of point headings and footnotesand exclusive of pages containing the table of contents, table of authorities, proofof service, certificate of compliance, or any authorized addendum is 3,798.

Dated: New York, New York June 8, 2010

Yours, etc.,LAW OFFICES OF SUSAN CHANA LASK

______________________By: Susan Chana Lask, Esq.Attorney for Plaintiff-Respondent244 Fifth Avenue, Suite 2369New York, NY 10001(212) 358-5762

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PROOF OF SERVICE

STATE OF NEW YORK, COUNTY OF NEW YORK ss.:

I, the undersigned, an attorney duly admitted to practice in the courts of NewYork State and in good-standing, pursuant to CPLR 2106, affirm the followingunder penalties of perjury:

I am not a party to the action, am over 18 years of age and have offices at

244 Fifth Avenue, Suite 2369, New York, NY 10001. On June 8, 2010, I servedthe within Brief by depositing 2 true copies of it, enclosed in a post paid wrapper,in an official depository under the exclusive care and custody of Federal Express,addressed to the attorney for the Appellant as follows: Steven Cohen, Esq.,Franklin, Gringer & Cohen, P.C. 666 Old Country Road, Suite 202 ,Garden City,New York 11530

DATED: June 8, 2010 LAW OFFICES OF SUSAN CHANA LASK New York, NY

-------------------------------------------------BY: SUSAN CHANA LASK, ESQ.Attorney for Plaintiff-Appellant244 Fifth Avenue, Suite 2369New York, NY 10001(212) 358-5762

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