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