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Marylynn Cellamare v. Steven Lakeman


April 11, 2011


Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 5, 2009.

Cellamare v Lakeman

Decided on April 11, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.


The order, insofar as appealed from, granted the branch of a motion by defendant seeking to dismiss the complaint, denied plaintiff's cross motion for the imposition of sanctions against defendant's attorney, and denied plaintiff's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff engaged in protracted litigation against defendant in Family Court, Richmond County, with respect to the custody and support of the parties' child. On September 19, 2003, the parties entered into an oral agreement before a Family Court referee with respect to past and future support payments for their child. Pursuant thereto, plaintiff agreed to abandon her claim for child support arrears, and defendant agreed that he would not ask plaintiff for any future child support payments. However, by order dated October 12, 2005, the support magistrate of the Family Court refused to enforce this agreement, commenting that the Family Court would not entertain an action for breach of contract and that if plaintiff wished to pursue such action, she could do so in the "appropriate court." Plaintiff's objections to this order were denied by order of the Family Court dated December 12, 2005, which order was affirmed by the Appellate Division (Matter of Cellamare v Lakeman, 36 AD3d 905 [2007]). In its order, the Appellate Division incidentally commented that a parent's duty to support his or her child cannot be abrogated by contract, and affirmed the Family Court's determination that the parties' oral agreement was void and unenforceable (see also Matter of Hoppl v Hoppl, 50 AD2d 59 [1975]).

In this plenary Civil Court action, plaintiff alleges that defendant breached the oral agreement made by the parties in Family Court on September 19, 2003, and also asserts that defendant's attorney performed unwarranted services and caused defendant to incur excessive legal fees. Defendant moved to, among other things, dismiss the complaint. In opposition to the motion, plaintiff expressed reliance on the support magistrate's comment, in the order dated October 12, 2005, that she could seek to enforce that agreement in "an appropriate court." However, the subject matter of the agreement was the parties' mutual waiver of obligation to pay each other child support payments and arrears for child support. This was the same agreement which the Appellate Division held to be void and unenforceable (Matter of Cellamare v Lakeman, 36 AD3d at 905). The Civil Court thus correctly dismissed plaintiff's claim seeking to enforce the prior oral agreement on the ground that it was barred under principles of res judicata.

With respect to plaintiff's allegations concerning defendant's attorney, since plaintiff did not assert that she had been harmed by such behavior, she was not the party aggrieved by the court's refusal to impose sanctions against defendant's attorney (see CPLR 5511).

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: April 11, 2011


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