RIVERHEAD, NY The question of whether the attorneys departed from good practice, allowing Plaintiff to be jailed for contempt in not paying child and spousal support was determined in the summary judgment decision in Rivera v Kerr 2019 NY Slip Op 33047(U) October 11, 2019
Supreme Court, Suffolk County Docket Number: 17736/2015 Judge: Sanford Neil Berland.
” The current action alleges legal malpractice in connection with, among other things. the handling of a prior action concerning and a contempt proceeding arising from the Settlement Agreement and Amendment to Separation Agreement (individually, the “‘Settlement Agreement”
and the ··Amendment”; together. the ‘”Amended Settlement Agreement”) and the Judgment of Divorce that resolved the matrimonial action between plaintiff and his Conner wife . Plaintiff alleges that he retained the defendants to bring and prosecute a plenary action challenging the Amended Settlement Agreement as defective and unenforceable and to defend him in the contempt proceedings that were brought against him for allegedly violating the Amended Settlement Agreement. The result of those contempt proceedings, which were conducted in Family Court. was that plaintiff was found to have \\illfully failed to pay court-ordered child support and maintenance to his ex-wife and was sentenced to serve six months of incarceration. and plaintiff now claims that the defendants committed legal malpractice by failing to challenge the validity of the Amended Settlement Agreement. For their part. defendants maintain that the Amended Settlement Agreement was not defective; that even if it was. plaintiff, as a matter of law. could not have been saved from being held in contempt: and that the complaint is otherwise without merit.”
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly
appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corp .. 3 NY2d 395, 165 NYS2d 498 [ 1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr .. 64 NY2d 851, 487
NYS2d 316 [ 1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr .. supra). Once such proof has been offered, the burden then shifts to the opposing party. who, in order to defeat the motion for sununary judgment, must proffer evidence in admissible form … and must ‘·show fac ts sufficient to require a trial of any issue of facf’ (CPLR 3212 [b ]; see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 ). As the court’s function on such a motion is to determine whether issues of fact exist. not to resolve issues of fact or to determine matters of credibility. the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (See Rot/I v Barreto, 289 AD2d 557. 735 NYS2d 197 [2d Dept 2001 ]: O’Neill v Fishkill, 134 AD2d 487. 521 NYS2d 272 [2d Dept 1987]).”