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Tuesday, March 26, 2013

The new "superwomen" -- Edith Windsor (US v. Windsor) and Attorney Roberta Kaplan, and their fight to overturn the Defense of Marriage Act


Tomorrow, March 28, 2013, the U.S. Supreme Court will hear arguments on whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprives same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States.  We would like to wish Roberta Kaplan, Esq., partner at Paul, Weiss, Rifkind and longtime attorney for Edith Windsor luck tomorrow.  Roberta has called herself a “stress junkie,” and arguing this matter before the US Supreme Court doesn’t get much more stressful. 

Here is link to an interview with Attorney Kaplan, conducted by Victor Li,  from approximately two years ago, from AmLawDaily:


http://amlawdaily.typepad.com/amlawdaily/2011/02/robertakaplanqa.html


Tuesday, March 12, 2013

Huge Prenup Win: Victory for Elizabeth Cioffi-Petriakis

Elizabeth Cioffi-Petriakis just won a huge decision in her favor.  It took years, but the Plaintiff said she did it at the trial level once she decided to go pro se (without lawyers), after spending $475,000.00 in legal fees.  By establishing fraud in the inducement and breaking the pre-nup, she stands to receive half of the marital estate, which is said to be worth many million of dollars.  This will have a big impact on cases in the State of New York.  Here is the decision of the Second  Department:


"Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D37430
T/hu
AD3d Argued - January 9, 2013
DANIEL D. ANGIOLILLO, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2012-01250 DECISION & ORDER
Elizabeth Cioffi-Petrakis, respondent, v Panagiotis
Petrakis, appellant.
(Index No. 8252/08)
Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Stephen Gassman and Cheryl
Y. Mallis of counsel), for appellant.
Weg and Meyers, P.C., New York, N.Y. (Dennis T. D’Antonio and Derek M. Zisser
of counsel), for respondent.
In an action, inter alia, to set aside a prenuptial agreement, the defendant appeals, as
limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Bennett,
J.), entered February 6, 2012, as, upon a decision of the same court (Falanga, J.), dated December
12, 2011, made after a nonjury trial, is in favor of the plaintiff and against him setting aside the
prenuptial agreement.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
In general, New York has a “strong public policy favoring individuals ordering and
deciding their own interests through contractual arrangements” (Matter of Greiff,92 NY2d 341, 344;
see Bloomfield v Bloomfield, 97 NY2d 188, 193). “However, this right is not and has never been
without limitation” (Kessler v Kessler, 33 AD3d 42, 45). “[T]he State is deeply concerned with
marriage and takes a supervisory role in matrimonial proceedings. . . . Indeed, in numerous contexts,
agreements addressing matrimonial issues have been subjected to limitations and scrutiny beyond
that afforded contracts in general” (id. at 46 [citation omitted]). Thus, while “there is a heavy
presumption that a deliberatelyprepared and executed written instrument manifests the true intention
February 20, 2013 Page 1.
CIOFFI-PETRAKIS v PETRAKISof the parties” (Brassey v Brassey, 154 AD2d 293, 295), an agreement between spouses or
prospective spouses may be invalidated if the party challenging the agreement demonstrates that it
was the product of fraud, duress, or other inequitable conduct (see Christian v Christian, 42 NY2d
63, 73; Petracca v Petracca, 101 AD3d 695; Weinstein v Weinstein, 36 AD3d 797, 798; Lombardi
v Lombardi, 235 AD2d 400).
“In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s
authority is as broad as that of the trial court and includes the power to render the judgment it finds
warranted by the facts, bearing in mind that due regard must be given to the decision of a trial judge
who was in the position to assess the evidence and the credibility of witnesses” (D’Argenio v
Ashland Bldg., LLC, 78 AD3d 758, 758).
Here, the Supreme Court reasonably resolved credibility issues in favor of the
plaintiff, and its determination that the defendant fraudulently induced the plaintiff to execute the
prenuptial agreement was supported by the evidence. With respect to the material facts underlying
the plaintiff’s claim, the Supreme Court found that the plaintiff’s testimony was “credible,”
“convincing,” “unequivocal,” and consistent with “additional corroborative evidence,” and that any
“inconsistencies” in her testimonyrelated to “insignificant” matters. Bycontrast, the Supreme Court
found the defendant’s “credibility to be suspect,” due in part, to his “patent evasiveness.” The
Supreme Court’s credibility findings are supported by the record. The plaintiff’s claim in this case
rested largely on the credibility of the parties, and we decline to disturb the Supreme Court’s
determination with respect thereto (see Reid v Reid, 57 AD3d 960). On the particular facts of this
case, the Supreme Court correctly determined that the plaintiff sustained her burden of establishing
grounds to set aside the prenuptial agreement (cf. Petracca v Petracca, 101 AD3d at 695).
The defendant’s remaining contentions are without merit.
ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
February 20, 2013 Page 2.
CIOFFI-PETRAKIS v PETRAKIS"