SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
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AFFFIDAVIT
FOR MOTION Index
No. M-705-95
ADRIANNE MURTARI,
Plaintiff,
- against -
JOHN MURTARI,
Defendant.
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State of
New York )
County of
Onondaga ) ss:
JOHN
MURTARI, being duly sworn, deposes and states:
1.
I am
the defendant in this action, and I make this affidavit in support of my
request for an order vacating the Note of Issue and other relief.
Delays caused by Plaintiff
2.
The
issue was joined on October 9th, and the plaintiff was served on that same day
with: an answer, a Demand for a Bill of Particulars, and a Notice of Oral
Deposition, scheduled for November 14th, 1995.
3.
The
plaintiff asked for more time to complete the Demand for a Bill of Particulars,
and it was not completed until November 13th, 1995. The Deposition was also delayed, on request of the plaintiff,
until December 5th, 1995 and not completed until December 18th, 1995.
4.
The
plaintiff submitted a “useless” Statement of Net Worth. It failed to list numerous financial
transfers from her parents; and also failed to disclose large transfers out of
her checking/savings account in the past year.
The plaintiff “lost” a check book register which would contain the names
of individuals who received checks in the past year. I believe this an attempt
at deliberate obstruction of financial discovery.
5.
After
the plaintiff’s EBT, the defendant informed opposing counsel that he would be
moving the court for permission to depose a non party, this was followed by a
letter dated January 3rd, 1996 (Exhibit A).
In phone conversation opposing counsel seemed unwilling to complete
financial disclosure and also was hesitating to correct a draft copy of a
previous order. Defendant responded on February 6th and again made clear
that discovery was not complete (Exhibit B).
6.
On
January 31,1996, the defendant served the Plaintiff with:
a)
Demand
for discovery of documents.
b)
Demand
for experts.
c)
First
set of written interrogatories (Exhibit R).
d)
Demand
for witnesses.
7.
The
plaintiff has complained of mental cruelty and has placed her mental/physical
well being at issue; thereby waving her privilege of immunity from
discovery. Furthermore, it is the
belief of the defendant that the plaintiff has deliberately misrepresented the
facts to counselors with whom she has spoken.
I was preparing to give the plaintiff “release of information” forms for
the mental health professionals who have treated her (Exhibit C) -- after
receiving their names and addresses via the interrogatories.
8.
On
20 February the defendant received (along with the filed Note of Issue) an
incomplete response to the discovery request of January 31, 1996 (Exhibit R).
a)
The
defendant supplied no names of experts.
b)
The
defendant supplied no additional documentary material.
c)
The
defendant refused to disclose financial transfers made to her by others.
d)
The
defendant refused to disclose her medical/psychological history.
9.
The
defendant did not completely disclose the names of her mental health counselors
-- omitting Ms. F. who counseled her in early 1994.
10.
The
defendant did not disclose or describe, in response to written interrogatories,
her business relationship with another man -- even though a service for money
relation was described during her deposition (Exhibit Q).
Defendant has been diligent in completing discovery
under a heavy workload
11.
In
late December the defendant was asked to product a care plan for our son
Domenic, by the Court appointed psychologist, Dr. Black.
12.
The
defendant is starting a small business and was given only 4 days notice before
departure of his only employee in early February. The position was not filled until March and caused the defendant
to be overworked for a period of time during the day. The defendant is also supplementing
income by teaching night classes at two local colleges during this same time.
13.
The
defendant has spent several weeks of effort, in the past few months, in
response to another civil action (in
which his participation is required).
More items for Discovery Remain
14.
The
plaintiff states the money used in downpayment on our residence was a gift from
her parents, solely to her.
15.
The
fact is they did sign a “gift letter”, required by the Mortgage Company, naming
both Mortgage holders as recipients of the gift. Unfortunately the Mortgage has
been passed through two other companies and I have yet to find the application.
16.
If
the application is not found I need to contact representatives still in the
local area to testify regarding their standard procedures and any recollections
or files they may have on hand.
17.
I
have done enough discovery to find out that both the Loan Officer and Mortgage
company representative that processed our loan are still in the local area and
available for contact.
18.
The
plaintiff is claiming abusive conduct, as a “course of conduct”, by the
defendant. While some close friends are
still in the area -- there is a couple which has moved to Minnesota, and I am
planing on capturing their testimony in a Deposition to Written Questions.
19.
The
plaintiff has demonstrated erratic behavior toward a “foster child” I had
sponsored in Virginia. I am planing on capturing her testimony in a Deposition
to Written Questions.
20.
The
plaintiff admitted to Tax Fraud and behavior consistent with adultery with another
man (Exhibit Q - excerpts from Deposition). In my “Answer” I counterclaim that
plaintiff’s genuine motivation in this matter is personal interests outside the
marriage.
21.
The
plaintiff has some large and unexplained checking withdrawals (due to the
“loss” of a check register). There may be a reasonable explanation for all
this, but I will need to see the canceled checks. On 10/13/94 my wife wrote a check to a Mr. Mihir Barva for
$1000.00 -- this name is unknown to me, and there may be the potential of other
business/personal relationships to be disclosed:
a)
10/20/93
- $1000
b)
11/2/93 - $2000
c)
11/9/93 - $2000
d)
11/9/93 - $1500
e)
7/28/94 - $6000
f)
7/29/94 - $2000
g)
7/29/94 - $6431
h)
8/2/94 - $2730
i)
8/19/94 - $2700
j)
9/7/94 - $1500
k)
10/3/94 - $2700
22.
I
believe the plaintiff has misled some of the professional counselors with whom
she has spoken by distorting the facts of our relationship and her past
relationships. Discovery of these items will allow me to present evidence of
these untruths.
23.
Ms.
Walsh has listed Dr. Hoenig as a witness on grounds (even though she has never
met me or spoken to anyone about me besides my wife). After review of her notes in this matter is complete -- I may
wish to take her deposition to prevent surprise at trial.
A new Law Guardian is required.
24.
Mr.
Joseph Lupia was appointed Law Guardian by the Court upon motion of the
defendant.
25.
The
defendant believes Mr. Lupia has not followed a reasonable process in
representing our son; and has not complied with the Guidelines For Counsel
For the Child in Custody and Visitation Procedures, issued by the Fourth
Department.
26.
The
defendant believes Mr. Lupia came to an early judgment in this matter not based
on his Direct Observation, but rather believed “hearsay” from plaintiff and
opposing counsel over the defendant.
27.
In
October, 1995, before the hearing of a Motion I had brought asking for another
Court appointed psychologist, Mr. Lupia intervened, writing a letter to the
Court to refrain from a change in Psychologist. This was based (according to Mr.
Lupia), on Domenic having already met with the Psychologist and avoiding the
stress of another encounter. This was
not the case -- Domenic had not met with Dr. Black, but just my wife and I, a
clear error in fact (Exhibit E).
28.
Mr.
Lupia prepared a report, dated November 17th, 1995. The defendant was presented with the report only minutes before
scheduled to appear before the Court in this matter.
29.
Mr.
Lupia, prior to preparing the report, had not spoken to a single independent
witness in this matter -- although encouraged by the defendant to do so. As of this date, 10 March 1996, Mr. Lupia
has only spoken to Dr. Black.
30.
In
review, the report (Exhibit D), chooses to down-play the neighborhood setting
of the home Defendant has for the child and the surrounding neighborhood
containing numerous children and several in Domenics age group. In the “LAW GUARDIAN RECOMMENDATIONS” his
words about “control” and “callus manner” and “interfering with visitation”
were not supported by any evidence (he had not spoken to a non-party). Indeed -- I had submitted a care plan to the
law guardian which called for equal involvement of both parents (as noted in
his report).
31.
Since
that report I have attempted on numerous occasions to keep Mr. Lupia informed,
and to enlist his advocacy for our Son. I have always treated him in a
courteous and professional manner.
I repeated my attempts to have him talk to witnesses (Exhibit F) and
supplied him with a copy of the “care plan” I had given Dr. Black (Exhibit G).
32.
In a
billing statement, dated January 23, 1996 (Exhibit T), Mr. Lupia holds me
responsible for the large bill: “This bill is abnormally high. However, you
will note that it is mostly due to the fact that Mr. Murtari felt it was
necessary to expand on his positions at great lengths, either in person, by
telephone, or correspondance.”
33.
I am
a board member of the Syracuse Chapter of Father’s rights (a group dedicated to
joint custody of our children) -- we
emphasize to all our members the need to communicate with their child’s Law Guardian. A review of the bill would hardly seem to
support an “expansive” statement.
34.
In
the “care plan” I enclosed excerpts from my wife’s EBT, in which she admits:
a)
to
actions consistent with adulterous behavior.
b)
an
unwillingness to visit with her child.
c)
unwillingness
to be a parent.
d)
desire
to franchise a major business only 8 months after Domenic was born.
35.
I
documented several cases of “interference” of my time with Domenic on January
15, 1996 (Exhibit H). Most recently in late February I told him that Adrianne was
attempting to stop me from even seeing Domenic for an hour a day at daycare
(even though the Day Care director approved). He has taken no affirmative
actions.
36.
I
spoke to Mr. Lupia about this and he said there might be some evidence of “keep away”. I believe that if I were to have acted in such a manner as the
temporary custodial parent: by putting
Domenic in daycare in preference to care by his mother, and then blocking access to Domenic’s mother at
daycare and not granting her hardly any additional visitation in almost 6
months, Mr. Lupia would have reacted so strongly -- they would have had to
scrap him off the ceiling of his office with a spatula.
37.
Mr.
Lupia was present at the review of Dr. Black’s report -- he made no mention of
Adrianne’s attempt to limit any extra contact between Domenic and I.
38.
In
the DRAFT of Dr. Black’s report her major recommendation was that Domenic
simply spend a MAJORITY of his time with his mother. In light of my present
one-day a week I attempted to see how she would feel about increasing that
time. Mr.Lupia cut off the conversation
by stating he would not support any change to Domenic’s schedule at the
present, as being to disruptive.
39.
I
find it difficult to believe a Law Guardian who has documented in his report a
positive relationship between father & son, but yet finds more time with
daddy disruptive!
40.
In
the Final Draft of Dr. Black’s report that recommendation was gone -- replaced
by an immediate assignment of custody to the mother. I know that Mr. Lupia remained in the conference room with Dr.
Black after the parties left. It is my
belief he may have recommended she strengthen her recommendation.
41.
On
February 10th 1996, I sent Mr. Lupia a letter asking he resign his position,
and also asking for a copy of the Law Guardian Guidelines (Exhibit I). Mr. Lupia has refused to step aside, and was
unwilling to supply the guidelines for my review.
An impartial Psychological Review of the Plaintiff
is required.
42.
I
feel the behavior of Dr. Black has been erratic and unprofessional in this
matter. On my first, and only, personal
interview with her I felt a strong bias and noted so in a letter immediately
after (Exhibit J).
43.
I
believe she did not follow the required process in performing the evaluation.
As describe in Guidelines for Child Custody Evaluations in Divorce
Proceedings, American Psychologist, July 1994; which she stated she adhered
to in her report.
44.
I
have retained another Psychologist, Dr. Thomas Lazzaro, to review her report
and methods as far as her evaluation of me was concerned. He has yet to
complete this review.
45.
Dr.
Black exhibited a great deal of reluctance regarding recording of her methods
and observations. I brought a motion
before the Court on November 21st for another psychologist -- the motion was
denied, and I believe the Court’s words were “let’s see what happens with Dr.
Black.”
46.
I
submitted to Dr. Black a detailed care plan (Exhibit G) in which I felt I laid
out a sensitive and “two parent” approach to raising Domenic. I also made it
very clear that I questioned my wife’s mental fitness to parent, especially in
light of certain admissions she had made in the deposition (Exhibit Q).
47.
I
had also given Dr. Black the names of several professionals to contact (and
signed releases). She did not speak to any of these individuals:
a)
Dr.
Jeffrey Keefe -- an experienced Psychologist who counseled both Adrianne and I
for an extensive period of time, ending in 1992.
b)
Deacon
Frank Foersh -- trained in counseling, I have been speaking with him about my
feelings throughout this matter.
c)
Dr.
Kiyoshi Kimura -- a Japanese psychiatrist and personal friend of both my wife
and I, and could confirm the tremendous family pressures she was exposed to in
the past.
d)
Rev.
Michael Meagher -- a formation director for the Diocese of Syracuse. Who had an
opportunity to evaluate me closely in a group-communal living environment for a
period of six months.
48.
When
she presented her report I asked Dr. Black why she had not spoken with Dr.
Keefe and was told his input was too old and not relevant. I related this to Dr. Keefe, afterwards,
and he felt his input would have been both timely and relevant.
49.
In
her DRAFT she also represented me as ridiculing my own educational background
as part of my “care plan”. I objected
to this slanted interpretation -- and the words were removed from the FINAL
draft.
50.
I
noted that Dr. Black made significant changes in her report between the DRAFT
and FINAL copy the Court received. I sent her a letter, dated February 7, 1996
(Exhibit K), requesting the draft so I could prepare a response for the Court
-- she refused (Exhibit L).
51.
After
retaining Dr. Lazarro, he requested I have authorize Dr. Black to release my
test scores for his review. I followed up a phone message with a letter, dated
February 24, 1996 (Exhibit M).
52.
Dr.
Black again refused in a letter, dated February 22, 1996 (Exhibit N). I related this to both Dr. Lazarro and a
representative of the New York State Office of Professional Discipline -- they
were both surprised at such conduct.
53.
Dr.
Lazarro sent a personal request to Dr. Black, dated February 26, 1996 (Exhibit
O) -- to which she finally complied. Noting so in another letter to me, dated
February 27, 1996 (Exhibit P).
54.
I
feel her conduct in this manner to be unprofessional. I am an engineer by training -- and peer review of a matter where
people’s well being is involved is always a GOOD thing.
Frustrated by the Conduct of Professionals on the
Court’s Behalf
55.
From
the beginning of this process I have felt confident that a fair hearing of the
facts would vindicate my position. I
moved for the law guardian and for the psychological evaluations -- never in
my wildest dreams did I think we would be six months into this process without
either the Psychologist or Law Guardian speaking to a professional/personal
witness on my behalf!
56.
As
an Air Force Operation’s Officer I had to conduct official investigations into
non-judicial punishment. Witnesses were
sworn and testimony was taken. When creating a report I was always sure to
present the facts, not just what I thought
or felt happened. I followed the
book -- and that is the way it should be done.
That has not happened here and I do not know why. It seems that stronger rules of evidence are
followed if a kid is accused of stealing a six-pack of coke from a quick-mart
-- than when the entire future of one of our children is to be decided?
Equal sharing of time. An immediate hearing into
the issue of pretrial custody of our son, Domenic. Access to Domenic while he
is at daycare. Either parent has first “right of refusal”, before placing our
son in third party care on a regular basis.
57.
After
Domenic’s recent birthday I asked by wife when he would be scheduled to go for
another check up for our Pediatrician (I have been to just about all of his
visits). She told me she already took
him -- that it wasn’t necessary to inform me of that.
58.
I
began visiting Domenic at daycare for two days a week, from 11:00 am to 12:15,
when mommy came to pick him up. The
daycare director did not have a problem with my presence and thought I was very
good with all the kids -- my wife and opposing counsel applied enough pressure
on the center to have me blocked. I have
never felt so humiliated -- not even allowed to visit your own son at daycare.
59.
The
preceding conduct outline in this entire affidavit underscores the need for a
hearing. Our son Domenic deserves the
right to have witnesses called before his Father becomes just a “visitor” in
his life.
60.
I
decided to start my own business to give me the freedom to be with my
family. I live in a wonderful
neighborhood and have a loving relationship with my son -- but only ONE day a
week. This has gone on for SIX months
and has become an intolerable burden.
61.
If I
as a man had been awarded temporary custody -- and then acted in the manner of
the plaintiff. I have little doubt I would be stripped of custody (and well
deservedly). I ask the same
consideration be given to me.
62.
I
find my Son’s childhood slipping away, and that is a loss to all three of us!
We have seen what type of job Plaintiff does in keeping two parent involvement
-- please give the Defendant an equal opportunity.
Baring the Plaintiff from the marital residence
unless the defendant approves of entry and is present.
63.
On a
preceding motion, heard on October 24th, you had granted me my request that the
plaintiff not be allowed in the marital residence unless I was present.
64.
As
is stated in those papers I was concerned about the manner in which Plaintiff
and her friend attempted to take more goods from the home than were hers and
that I was forced to call “911” and have Police assistance in stopping her
conduct.
65.
Ms.
Walsh left this out of her first draft order.
I spoke to Mr. Murray about this and he told me to settle it with Ms.
Walsh. We spoke and she agreed to the change -- but was slow in updating the
order (Exhibits B & C).
66.
Most
recently in a letter dated February 20th, 1996,(Exhibit U). She states the
Court did not grant “exclusive use and possession” -- that is true (but it is
not at issue); she ignored the Court’s words in this matter -- which seemed
clear.
____________________
JOHN
MURTARI
Sworn to
before me this
11th day
of March, 1996.
______________________________
Notary
Public