SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ONONDAGA

____________________________________

 

ORDER TO SHOW CAUSE

 

Index No.  M-705-95

RJI No.    33-95-3267

 

 

 
Adrianne Murtari,  

                  Plaintiff

 

      -- against --

 

John Murtari,    

                  Defendant

____________________________________

 

Upon reading and filing the annexed Affidavit and letter by defendant, John Murtari, duly sworn to on the 19th day of July, 1996, and upon all papers filed and letters and proceedings heretofore had herein, it is:

 

ORDERED, that the plaintiff, Adrianne Murtari, show cause before this Court at the Onondaga County Courthouse, on the ______ day of ___________,1996,

at ___________ o’clock, as to why an order should not be entered:

 

1.    Granting a mistrial in the current action, allowing the defendant time to complete discover and pretrial preparation, and scheduling a new trial to be heard by a jury.

2.    Reserving judgment by the Court on the issue of grounds and allowing the defendant to complete the presentation of his defense and to make a closing statement.

3.    Modifying the prior temporary order to establish both parents as legal custodian’s of Domenic Murtari.

4.    Modifying the prior temporary order to establish joint physical custody of Domenic Murtari during the remainder of this action, with equal time for each parent.

5.    Directing the plaintiff to give the defendant the sum of $10,000 to be used by defendant to retain the legal counsel and expert witnesses required for his defense.

6.    Dismissing Mr. Joseph Lupia as Law Guardian for Domenic Murtari, and appointing a new guardian to protect the child’s interests for the remainder of this action.

7.    Compelling Dr. Lois Black, Psychologist appointed by the Court, to comply with defendant’s discovery request for all notes and other materials in her possession regarding this matter.

8.    Compelling the plaintiff to sign authorizations for release of information to Dr. Keefe (psychologist), Ms. Hirano (counselor), and Crouse Irving/PHP (medical treatment).

9.    Ordering that a complete transcript of the trial proceedings be requested by the Court and supplied at no cost to the parties.

 

ORDERED, that service of a copy of this Order, together with the papers upon which it is based, upon Ms. Maureen Walsh, Esq., the attorney for the Plaintiff, and Mr. Joseph Lupia, Law Guardian for Domenic Murtari, on or before the _________ day of ____________, 1996, shall be deemed good and sufficient service.

 

 

 

Signed this __________ day of  _____________, 1996         

 

 

                                          _______________________________

                                          Honorable Charles T. Major

                                          Justice of the Supreme Court

                                          State of New York

                 


SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ONONDAGA

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

 

AFFFIDAVIT IN SUPPORT OF ORDER TO SHOW CAUSE

Index No. M-705-95

 
ADRIANNE MURTARI,

                        Plaintiff,             

                                               

      - against -                                    

     

 

JOHN MURTARI,

                        Defendant.

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

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 to show cause.

 

Granting a Mistrial

2.                I was denied a fair opportunity to complete discovery and was denied a motion to vacate a Note of Issue which was prematurely filed.

3.                I was denied my right to have this matter heard by a Jury even though it had been clear to both the Court and the Plaintiff that I would seek a Jury in this action.

4.                The Court denied my requests for a “level playing field” by not appointing me the funds necessary to retain counsel. As defendant I was forced into the position of making all tax and mortgage payments on the marital residence while the Plaintiff used her extensive financial resources to retain experienced counsel and expert testimony.

5.                An expert witness for the Plaintiff, Dr. Hoenig, was allowed to testify, over objection, without being identified during discovery. During discovery I had made a specific “DEMAND FOR EXPERTS” and received no reply from the Plaintiff.

6.                A witness for the Plaintiff, Dr. Hoenig, was allowed to present “hearsay” testimony, over objection, while having no direct knowledge of the defendant.

7.                Judgment was unexpectedly declared on the issue of grounds without giving me an opportunity to complete my defense or make a closing statement on the evidence presented.





Reserving Judgment, Allowing Defendant to Complete Presentation of his Defense

8.                Judgment was unexpectedly declared on the issue of grounds without giving me an opportunity to complete my defense or make a closing statement on the evidence presented.

Modification of Order for Joint Legal/Physical Custody of Domenic

9.                During trial the Court had the opportunity to observe extensive direct evidence of the wonderful relationship Domenic and I have as parent and child.

10.            There were seven witnesses presented who testified to a warm relationship between father and son.  To a parent who is very good with children.  These were both relatives, neighbors, and professional associates.

11.            I recall to the Court Ms. Roche’s testimony (director of day care center and subordinate of Dr. Hoenig (hostile to defendant). Who clearly testified to crying and disturbance caused by Domenic when his Father left the center -- even though this mother was present.

12.            I recall to the Court the visual evidence of the videotape which documented again and again a loving and normal home environment and a very contented Domenic with the defendant.

13.            I recall to the Court the demeanor of the defendant’s witnesses. They were not hostile to the plaintiff, they had not been “coached” or “prepared”.

14.            The only adverse testimony was based on hearsay and presented by Dr. Hoenig (obviously hostile to defendant).  Dr. Hoenig, who had never met me was 100% certain her report was correct. Not a credible professional attitude.

15.            Domenic is not developing the English language skills he will need to communicate with his Father, friends, and neighbors.

16.            Domenic is being denied the opportunity to live in his home and grow up in a neighborhood with children of his same age.

17.            The Plaintiff is unconscionable in her failure to communicate with the Defendant regarding Domenic’s activities and to both exclude him or even make him aware of items such as Dr. Visits or plans to put Domenic in day care.

18.            The Plaintiff is unconscionable in slandering the defendant’s abilities as a parent, merely to further her GOAL of a divorce.

19.            The Plaintiff is unconscionable in denying Domenic the opportunity to spend more time with his father and in his home environment.

20.            The Plaintiff is unconscionable in placing Domenic in an “inner city” daycare center while his father is both willing and able to provide excellent care.

21.            The Plaintiff, by her own admission, did not want to have a child.

22.            The Plaintiff, by her own admission, wanted to start a major business when Domenic was still an infant.

23.            The Plaintiff, by her own admission, spent numerous evenings away from home with her friend Taskal. Happy to let Domenic and his father have meals alone.

24.            The Plaintiff has had the opportunity at Trial to present eye witnesses, and has present none.  I bring a “missing witness” charge against the Plaintiff -- the reason no witnesses were called, including Dr. Black, is that their testimony would have been adverse to the Plaintiff’s case. Indeed, the ONLY witness called by the Plaintiff, Dr. Hoenig, testified clearly only on hearsay.

25.            There is only ONE victim in this action, only ONE person who has experienced harm,  and that is our Son Domenic. I have pursued this action so vigorously for my son’s sake in the pursuit of justice for ALL.  Family and friends are “baffled” by my treatment in this proceeding.

 

Assignment of $10,000 to Defendant for Legal/Expert Fees.

26.            The Plaintiff has had extensive financial resources to pursue a “well funded” divorce.  She has been able to acquire both experts and experienced counsel.  I have had the opportunity for neither.

27.            It is my belief that equal representation will bring this matter to a just closing and reduce overall legal expenses for all concerned.

28.            Without repeating, I bring to the Court’s attention all the items in my pre-Trial motion for counsel fees. As I have presented in previous papers I cannot afford counsel. A court order prohibits me from incurring more debt.

29.            I am making a good faith effort to start a business, and have also acquired part-time employment as an instructor.

30.            I am living in the marital residence and have been making all the tax, mortgage, and insurance payments for over year.  We live in a good neighborhood and school district for the growth of our son.

31.            It is plaintiff’s testimony that over $20,000 originating in her checking account was a “business loan” to a person I believe she was involved with in an “affair”.



Dismissing Mr. Joseph Lupia as Law Guardian

32.            Without repeating, I bring to the Court’s attention all the items in my pre-Trial motion to have Mr. Lupia dismissed.

33.            Your honor, I feel Mr. Lupia is not representing the best interests of our son Domenic, he is not “our son’s attorney.”  I feel his conduct during Trial was singularly one-sided.

34.            During a meeting in his office, prior to Trial, Mr. Lupia told me that at trial everything would be treated as “new”, that evidence would be heard and considered fairly and objectively. I feel this did not occur.

35.            Mr. Lupia never attempted to elicit, during his questioning of witnesses, any adverse information about the Plaintiff.

36.            Mr. Lupia never attempted to elicit, during his questioning of witnesses, any positive information about the Defendant.

37.            Mr. Lupia’s objections raised during the trial were always in support of the cause for the Plaintiff.

38.            With the number of defense witnesses presented, Mr. Lupia had a wonderful chance to explore both the parenting strengths/weaknesses of the defendant. He seemed to be looking just for weaknesses.

39.            One of Mr. Lupia’s duties is to insure a fair record is maintained at Trial.  I feel his “cross-examination” of me regarding the objective material presented on the video tape, about being “over controlling”, and “failing to feed my son when he was hungry” -- was an attempt at distortion,  even beyond the attempts made by the Plaintiff’s own attorney!

40.            It is my belief that the assignment of another, more objective Law Guardian, could assist the court in making a final determination and hopefully bring this entire matter to a just conclusion.

Compelling Discovery by Dr. Black

41.            Your honor, I want Dr. Black to take the witness stand. I bring to your attention my pretrial motions regarding her prejudicial behavior and to have introduction of her report blocked without her testimony. She has conducted herself in an unusual manner in this proceeding.

42.            I cannot afford to call Dr. Black to the witness stand, but I can present some meaningful evidence if she is required to comply with a discovery request for papers and documentation.

43.            Specifically, one of the most important items is the DRAFT of her report, which (as I stated in my pretrial motion) differed significantly from that introduced at trial.   I have made requests to Dr. Black for this draft, and she has refused to comply with my request.

 

Compelling signature of release forms

44.            I attended counseling with plaintiff with both Dr. Keefe and Ms. Hirano.

45.            Briefly stated, the items of concern actually stated in those sessions do not agree with the plaintiff’s complaint and sworn testimony about some type of “bizarre marriage”.

46.            After moving from our home last fall. The plaintiff was admitted to the emergency room and was admitted for 2-3 days at Crouse Irving Hospital.

47.            In her brief conversations with me she described severe headaches, nausea, and described her diagnosis as “viral meningitis”.  I have no reason to believe her statement of the diagnosis; indeed, her condition might have been caused primarily by psychological factors. In the best interest of our son, this information needs to be disclosed.

48.            The plaintiff has been able to carefully control the evidence in this matter. Although complaining about a “course of conduct” -- her unwillingness to call witnesses who should have been able to support her allegations brings into question her credibility.


Ordering of a Trial Transcript

49.            The Trial has involved over four days of testimony from over 15 witnesses. The Trial started in April, and has been adjourned, at the Court’s request until September.

50.            A complete transcript is necessary so that I can prepare for a continuation of the proceeding.

51.            The transcript is also important in evaluating the conduct of Mr. Lupia, law guardian.  I did ask the Court Reporter if he could generate a “limited” transcript of just Mr. Lupia’s questions/answers -- but was told that could not easily be done.




 

Sworn to before me this

19th day of August, 1996.

 

 

______________________________

Notary Public