Decisions of Interest

Plaintiff Patricia Kane is the Limited Administratrix of her mother's estate. As such, she instituted a wrongful death action against Galtieri, including a claim under Executive Law ' 632-a. Section 632-a, commonly known as the Son of Sam Law, was put in place to prevent convicted criminals from profiting from their crimes ' most famously by selling book rights to their stories, but also by other means. New York's version of the law covers not only the direct proceeds of the crime in issue but also a criminal's assets from other sources. Kane's suit was successful, and the estate was awarded $31 million in damages. She attached Galtieri's pension benefits to partially satisfy the judgment.

Galtieri then moved to vacate plaintiff's attachment on the ground that his pension was exempt from execution, garnishment, attachment or assignment in accordance with the Administrative Code of the New York City. The court was not persuaded, noting that although the legislature expressly exempted certain categories of funds from the reach of the Son of Sam Law, it did not include pension fund proceeds on that list. The court also cited to the rule, enunciated in Matter of NY State Office of Victim Serv. V. Raucci, 97 AD3d 235, that says older, more general provisions ' in this case, the Administrative Code of the City of New York's provisions prohibiting assignment or attachment of City pension proceeds ' are subordinate to the more recent and specific dictates of the Son of Sam Law because a later-enacted specific statute takes precedence over a prior general statute. And, finally, the State's courts have long recognized a pension assignment/attachment exception in the case of equitable distribution.

The court also found that the timing of the Florida separation agreement between Galtieri and his second wife Marilyn (entered into one month after his conviction) and the fact that it gave his last asset almost entirely to her evinced an attempt to sequester Galtieri's funds and make him judgment-proof. Thus, the conveyance was “patently void” under New York's Debtor and Creditor Law ' 273-a.

No Cause of Action for Emotional Distress

A father who is also an attorney and who sued his ex-wife claiming her bad parenting cause him emotional distress lost his case for lack of a cognizable injury and was fined for bringing a frivolous lawsuit. Anonymous v. Anonymous, 2012 NU Slip Op. 22259 (Sup. Ct., Madison Cty., 9/14/12) (McDermott, J.).

The parties have two sons, born in 1991 and 1993. When they divorced in in 2004, they had joint custody, with primary physical custody in the mother. The older boy eventually moved to Florida with the father, where he attended a performing arts school. At some point he began to have problems. The father claimed that the mother used this fact as a means to surreptitiously convince her son to return to New York, and that this secret caused the boy to run away for three days. The son did move back to New York, but his emotional and educational problems continued, leading to drug abuse and a stint in a mental health facility. The boy also was allegedly physically attacked by his stepfather in his mother's presence. After the father moved to Ukraine, his son appeared there unannounced. According to the complaint, all these incidents caused the father emotional distress that impacted his health. The father, acting pro se, sued his ex-wife on a theory that, when joint custody is awarded, parents owe a duty of good parenting not only to the child, but also to each other. The court, unconvinced, stated, “If one parent ceases to cooperate with the other, the aggrieved parent's recourse is to seek a termination of joint custody and an award of sole custody to protect the best interests of the child. The non-offending parent does not become entitled to money damages for the breach because it is not to the parent that the duty is owed.”

The court next imposed sanctions against the father because of evidence that he brought his claim at least in large part to harass his ex-wife. That evidence included a letter sent to the wife's attorney, in May 2011, in which he threatened her should she refuse to sign a mutual release of claims against one another. In it, he noted that his ex-wife had sued him six times and described her as “one of the most litigious people I've ever known.” He said that although he had never yet sued her, “that's going to change in the fall when [the younger son] is no longer living with her. At that time, unless we can settle now, I intend to sue [the ex-wife] and her husband for negligent infliction of mental distress and prima facie tort for all the emotional and physical damage she and her husband have caused me via their mistreatment of [the older son]. I'm confident I can defeat a motion to dismiss on the claims I have in mind which means, whether I ultimately win or lose, it's going to cost (the ex-wife) more thousands of dollars to defend herself. So perhaps you, or your client, can see some value in avoiding this expense (emphasis added).” As an attorney acting pro se, the father's financial investment in the lawsuit was small, and the court determined the letter to his ex-wife's attorney showed that he was therefore willing to risk bringing a suit with little merit if only to cause her financial hardship. Thus, the court awarded the wife reimbursement of the costs of defending the lawsuit.

Murderer of Ex-Wife Cannot Transfer Her Pension Share

Invoking the Son of Sam law (Executive Law ' 632-a), Justice Philip Minardo of Supreme Court, Staten Island, recently ruled that a convicted murderer's pension payments should go not to his second ex-wife, but to the daughter of his first marriage, which was to the woman he murdered. Kane v. Galtieri, 2012 N.Y. Misc. LEXIS 4320 (Sup. Ct., Staten Island 9/7/12) (Minardo, J.).

John Galtieri was a police officer who retired on disability in 1980. His wife at that time, Jeanne, obtained a New Jersey divorce from Galtieri in 2003. She was awarded most of his pension in that action. Galtieri subsequently married Marilyn Galtieri in Florida. While married to Marilyn, Galtieri travelled to New York and murdered Jeanne. He was convicted in 2009 and is currently serving a 31-year sentence. Following the murder, second wife Marilyn instituted a divorce action against Galtieri in Florida. After Galtieri's conviction, but before he was sentenced, he and Marilyn entered into a settlement agreement under which she would be given the bulk of his pension benefits. This agreement was later incorporated into a Florida Judgment of Divorce dated April 15, 2009.

Plaintiff Patricia Kane is the Limited Administratrix of her mother's estate. As such, she instituted a wrongful death action against Galtieri, including a claim under Executive Law ' 632-a. Section 632-a, commonly known as the Son of Sam Law, was put in place to prevent convicted criminals from profiting from their crimes ' most famously by selling book rights to their stories, but also by other means. New York's version of the law covers not only the direct proceeds of the crime in issue but also a criminal's assets from other sources. Kane's suit was successful, and the estate was awarded $31 million in damages. She attached Galtieri's pension benefits to partially satisfy the judgment.

Galtieri then moved to vacate plaintiff's attachment on the ground that his pension was exempt from execution, garnishment, attachment or assignment in accordance with the Administrative Code of the New York City. The court was not persuaded, noting that although the legislature expressly exempted certain categories of funds from the reach of the Son of Sam Law, it did not include pension fund proceeds on that list. The court also cited to the rule, enunciated in Matter of NY State Office of Victim Serv. V. Raucci , 97 AD3d 235, that says older, more general provisions ' in this case, the Administrative Code of the City of New York's provisions prohibiting assignment or attachment of City pension proceeds ' are subordinate to the more recent and specific dictates of the Son of Sam Law because a later-enacted specific statute takes precedence over a prior general statute. And, finally, the State's courts have long recognized a pension assignment/attachment exception in the case of equitable distribution.

The court also found that the timing of the Florida separation agreement between Galtieri and his second wife Marilyn (entered into one month after his conviction) and the fact that it gave his last asset almost entirely to her evinced an attempt to sequester Galtieri's funds and make him judgment-proof. Thus, the conveyance was “patently void” under New York's Debtor and Creditor Law ' 273-a.

No Cause of Action for Emotional Distress

A father who is also an attorney and who sued his ex-wife claiming her bad parenting cause him emotional distress lost his case for lack of a cognizable injury and was fined for bringing a frivolous lawsuit. Anonymous v. Anonymous , 2012 NU Slip Op. 22259 (Sup. Ct., Madison Cty., 9/14/12) (McDermott, J.).

The parties have two sons, born in 1991 and 1993. When they divorced in in 2004, they had joint custody, with primary physical custody in the mother. The older boy eventually moved to Florida with the father, where he attended a performing arts school. At some point he began to have problems. The father claimed that the mother used this fact as a means to surreptitiously convince her son to return to New York, and that this secret caused the boy to run away for three days. The son did move back to New York, but his emotional and educational problems continued, leading to drug abuse and a stint in a mental health facility. The boy also was allegedly physically attacked by his stepfather in his mother's presence. After the father moved to Ukraine, his son appeared there unannounced. According to the complaint, all these incidents caused the father emotional distress that impacted his health. The father, acting pro se, sued his ex-wife on a theory that, when joint custody is awarded, parents owe a duty of good parenting not only to the child, but also to each other. The court, unconvinced, stated, “If one parent ceases to cooperate with the other, the aggrieved parent's recourse is to seek a termination of joint custody and an award of sole custody to protect the best interests of the child. The non-offending parent does not become entitled to money damages for the breach because it is not to the parent that the duty is owed.”

The court next imposed sanctions against the father because of evidence that he brought his claim at least in large part to harass his ex-wife. That evidence included a letter sent to the wife's attorney, in May 2011, in which he threatened her should she refuse to sign a mutual release of claims against one another. In it, he noted that his ex-wife had sued him six times and described her as “one of the most litigious people I've ever known.” He said that although he had never yet sued her, “that's going to change in the fall when [the younger son] is no longer living with her. At that time, unless we can settle now, I intend to sue [the ex-wife] and her husband for negligent infliction of mental distress and prima facie tort for all the emotional and physical damage she and her husband have caused me via their mistreatment of [the older son]. I'm confident I can defeat a motion to dismiss on the claims I have in mind which means, whether I ultimately win or lose, it's going to cost (the ex-wife) more thousands of dollars to defend herself. So perhaps you, or your client, can see some value in avoiding this expense (emphasis added).” As an attorney acting pro se, the father's financial investment in the lawsuit was small, and the court determined the letter to his ex-wife's attorney showed that he was therefore willing to risk bringing a suit with little merit if only to cause her financial hardship. Thus, the court awarded the wife reimbursement of the costs of defending the lawsuit.