1

1 SUPREME COURT OF THE STATE OF NEW YORK

2 COUNTY OF KINGS: IDV-2
3 --------------------------------------x
4 RIVKA STEIN :Index No.
Plaintiff ,
5 - AGAINST - :54467-2012
6 YOEL WEISS :CALENDAR
7 Defendant. :CALL
8 --------------------------------------x
320 JAY STREET
9 BROOKLYN, NEW YORK 11201
10 MAY 27, 2014
11
12 B E F O R E: HONORABLE ESTHER MORGENSTERN
JUSTICE,
13 A P P E A R A N C E S:
14
ATTORNEY FOR THE PLAINTIFF RIVKA STEIN
15 JOEL BANUELOS, ESQ.
750 7TH AVENUE, NEW YORK NY 10019
16 212-612-3296

17 BY: JOEL BANUELOS, ESQ.
18
ATTORNEY FOR THE DEFENDANT, YOEL WEISS
19 BERKE & BERKE ATTORNEYS AT LAW
90 PARK AVENUE, NEW YORK NY 10016
20 BROOKLYN, NEW YORK 11201

21 BY: JEFFREY R. BERKE, ESQ.
212-888-8787
22
23 SUSAN OLIVA, CSR.
SENIOR COURT REPORTER
24
25
Proceedings
2
1 THE CLERK: Calling from the Matrimonial
2 calendar, Stein v. Weiss. 54467-2012.
3 Appearances, please.
4 MR. BERKE: For the defendant father, Yoel
5 Weiss, Jeffrey Berke.
6 MR. BANUELOS: For the plaintiff mother,
7 Rivka Stein, Joel Banuelos.
8 CHILDREN'S LAW CENTER: Rose Marie Garcia,
9 Children's Law Center.
10 THE COURT: Case was advanced pursuant to
11 the defendant's order to show cause, and I have an
12 emergency file filed by the plaintiff, heard before
13 Judge Landacino.
14 Ms. Garcia, were you present at that
15 hearing?
16 CHILDREN'S LAW CENTER: I was able to
17 appear by phone on Thursday.
18 THE COURT: I had a brief conversation
19 with Judge Landacino this morning, and he was
20 unaware of a history in this case.
21 I am rather shocked about what happened.
22 CHILDREN'S LAW CENTER: I explained the
23 history, and it appears Ms. Stein was alarmed about
24 something that happened over the weekend.
25 He felt it would be the best thing to
Proceedings
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1 suspend --
2 THE COURT: Was it his weekend?
3 This past weekend?
4 MR. BERKE: No.
5 THE COURT: In reading your order to show
6 cause, it's all based upon plaintiff's fear that the
7 defendant would retaliate by harming the children?
8 MR. BANUELOS: That's correct.
9 THE COURT: Well, if her fear was so real,
10 honestly, she should have raised that before Judge
11 Adams and prior to that. It's outrageous to go to a
12 judge who has never seen the case after the district
13 attorney determined that her credibility was
14 lacking.
15 MR. BANUELOS: It's my understanding that
16 she has raised her concerns in the past. We made it
17 clear with Judge Landacino on Thursday of last week
18 which said that nothing had occurred to cause
19 Ms. Stein any particular fear with the exception of
20 the --
21 THE COURT: That's a reason to suspend
22 because of her "fear" after the district attorney
23 assessed her credibility on three cases commenced as
24 a felony and found her credibility lacking and ACD'd
25 the case without asking for orders of protection,
Proceedings
4
1 counsel.
2 That's very telling in an IDV
3 problem-solving court. It alarms me, and it's based
4 on her "fear" that he will retaliate against her by
5 hurting the children.
6 MR. BERKE: That fear, according to the
7 papers which, by the way, were not properly served.
8 THE COURT: I can't deal with that because
9 Judge Landacino heard it.
10 MR. BERKE: I am not talking about that.
11 Her fear, according to her papers, is that
12 because he went to you for assistance, there was a
13 motion pending because in March, I asked, "Let's
14 consent and work out a parenting plan." And my
15 adversary said, "I will do that." I said, "I can
16 have it done by the end of the week."
17 So there was an order that she wrote up
18 that was never done.
19 MR. BANUELOS: As further described in our
20 papers, it seems that the defendant is motivated by
21 finances and --
22 THE COURT: To do what?
23 To hurt his children? Motivated to do
24 what?
25 MR. BANUELOS: Defendant has used the
Proceedings
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1 children as a means to manipulate --
2 THE COURT: Counselor, we have been
3 litigating this since October 29. I have not heard
4 anything that shows that he has manipulated the
5 children for financial gain.
6 There were other allegations but not that
7 one. And if her fear seems so real, according to
8 the file, "her fear that he will retaliate against
9 me by harming the children."
10 Ms. Garcia, what do you want to say?
11 CHILDREN'S LAW CENTER: As I stated on the
12 record throughout this case, the children have not
13 had any issues, and the mother has still come with
14 many concerns, and we have a social worker assigned
15 specifically to this case to basically investigate
16 the mother's continued allegations.
17 We have an appointment after this order to
18 show cause is heard.
19 THE COURT: You did not support the order
20 of protection?
21 CHILDREN'S LAW CENTER: I maintain my
22 position that I am not in support of that. Not, at
23 least, on behalf of my client.
24 I would ask, at least, for the next
25 appointment for the father to produce the children
Proceedings
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1 wherein the children are more easy going with him.
2 They are very attached to the father. When the mom
3 produces them, everyone has anxiety. They hardly
4 want to speak.
5 It's been a pattern at this point and,
6 again, both the social worker and I have observed
7 the father when he produces them.
8 So there is no issue as to fear with the
9 father.
10 THE COURT: Counselors, step up.
11 (Whereupon, an off-the-record discussion
12 was held at the bench between court and
13 counsel.)
14 THE CLERK: Weiss v. Stein is back on the
15 record. Same appearances as previously noted.
16 THE COURT: Do you have the short form
17 order? We're setting up a deposition schedule.
18 MR. BERKE: I do. My adversary -- he does
19 not agree to the dates. You didn't decide the
20 motion.
21 THE COURT: Counselors, stop.
22 Defendant's motion to compel?
23 Who wrote this?
24 MR. BERKE: I wrote it.
25 THE COURT: What is wrong with June 27?
Proceedings
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1 MR. BANUELOS: That's fine.
2 We objected to the language of that order
3 to the extent that this is not the return date on
4 that particular motion filed by the defendant.
5 THE COURT: Can we talk about apples. Now
6 we're dealing with a discovery schedule.
7 MR. BANUELOS: I understand.
8 It's our position with respect to their
9 order to show cause for that discovery, that
10 depositions should not go forward. We haven't
11 received a single documentation from the defendant.
12 THE COURT: Tell us what you are missing
13 and what you are asking for by claiming you can't be
14 ready for June 27. It's not helpful.
15 MR. BANUELOS: We have not had an
16 opportunity to response papers.
17 THE COURT: Then bill him for another -- I
18 need to get this case moving forward.
19 MR. BERKE: I gave a courtesy copy before
20 the court had it.
21 THE COURT: I am ordering depositions by
22 June 27 at 10:00 a.m on that date deposing the
23 defendant at plaintiff's counsel's office.
24 This shall not be adjourned without court
25 order.
Proceedings
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1 Now, let's talk about what you are
2 missing? What is the list of what you are missing?
3 MR. BANUELOS: The list of documents we're
4 missing is voluminous.
5 THE COURT: Tell us so that we can look at
6 it.
7 MR. BANUELOS: It's discussed in our
8 motion papers. I can give you insight as to where
9 we summarized missing documentation.
10 THE COURT: What exhibit is it?
11 MR. BANUELOS: In the attorney's
12 affirmation.
13 MR. BERKE: One of the things they want is
14 documentation is from entities that they claim my
15 client is connected with. He claims he is not. He
16 can't produce what he does not have.
17 THE COURT: Then that's your answer.
18 I want depositions to go forward.
19 Ms. Garcia, did you obtain the necessary
20 releases?
21 CHILDREN'S LAW CENTER: I did. Mother's
22 position is that the children are not in counseling
23 and that she is trying to obtain that through the
24 school.
25 THE COURT: I directed going back to
Proceedings
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1 December, 2013 that the children be in counseling.
2 Now, I direct the father to enroll in
3 counseling. This three and four year old needs to
4 be in counseling.
5 CHILDREN'S LAW CENTER: We will work with
6 the father.
7 THE COURT: Father to enroll the children
8 in counseling.
9 MR. BANUELOS: She has enrolled the
10 children in counseling.
11 THE COURT: Tell the attorney for the
12 children.
13 CHILDREN'S LAW CENTER: It is our
14 understanding that she is working with the school to
15 obtain counseling. That's what I was informed of.
16 THE COURT: Father to enroll the children
17 in counseling.
18 Now, in terms of the other requests?
19 CHILDREN'S LAW CENTER: There was a
20 concern about attempts at alienation. I ask for
21 additional time for the father.
22 I understand he has significant time at
23 this point. I think, perhaps, it's every other
24 weekend, currently, and once per week we have an
25 overnight. We seek Friday to Monday.
Proceedings
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1 How is Thursday to Monday instead? Even
2 if it's for one of the weekends.
3 But we ask for at least one extra day.
4 MR. BANUELOS: Any increase is over our
5 strenuous objection.
6 Nothing has happened to merit this change.
7 THE COURT: A lot has happened. She
8 claims that she is fearful that he will be harmful
9 to the children. I am very concerned.
10 MR. BANUELOS: There was no discovery --
11 THE COURT: Your client claims an order to
12 suspend visitation is based on as it's stated in the
13 papers, "my fear that defendant will alienate the
14 children against me by harming the children."
15 Now, ma'am, how is that in the best
16 interest of the children -- to cut the father's time
17 with his children because of "her fear" that he is
18 going to hurt her by hurting the children?
19 How is that in the children's best
20 interest?
21 MR. BANUELOS: Plaintiff laid out what she
22 has been able to agree to by the defendant's
23 financing; that the defendant will feel that he is
24 losing control and take extreme measure.
25 THE COURT: I don't follow that logic.
Proceedings
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1 I want your client to submit to a
2 psychological evaluation. Here is the order.
3 Rivka is directed to have a forensic
4 mental health evaluation. I don't understand this.
5 MR. BANUELOS: There was a forensic
6 conducting a report on the issue of custody.
7 There was a forensic assigned to the case.
8 THE COURT: That's different. I want a
9 psychiatrist evaluation for the mother.
10 MR. BANUELOS: If I may? The parties had
11 been previously evaluated by a psychologist in 2011.
12 THE COURT: Prior to the commencement --
13 MR. BANUELOS: Yes, we ask that prior to
14 plaintiff being required to submit to a psychiatric
15 evaluation, at the very least, that that report be
16 reviewed by the court.
17 THE COURT: I want that report to go to
18 the mental health evaluator so that the doctor can
19 read it and see what's going on.
20 New York City Health and Hospital
21 Corporation is part of Family Court who will conduct
22 the psychiatric evaluation, and we will give her the
23 order.
24 I will amend father to have Thursday from
25 school to Monday to school, alternating weekends.
Proceedings
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1 Ms. Garcia, draft that portion, and I would like
2 phone contact. Why can't we have phone contact?
3 MR. BERKE: He offered a computer for
4 SKIPE.
5 THE COURT: Do they speak to the mother?
6 MR. BANUELOS: He does have phone access
7 with the children.
8 THE COURT: When does he have access?
9 MR. BANUELOS: Every single day.
10 MR. BERKE: Do you know how many hangups
11 there are? I was even there.
12 THE COURT: When the children are with the
13 father, they should speak to the mother. Encourage
14 them to call the mother.
15 It should continue to occur.
16 CHILDREN'S LAW CENTER: Just to clarify,
17 the last court date, Thursday, when telephonically,
18 I understand this was an emergency order to show
19 cause, a visit was pending this past weekend.
20 THE COURT: I was told there was no visit.
21 CHILDREN'S LAW CENTER: It's confusing.
22 There was no visit this past weekend. I
23 am not sure what the motive was to bring the case
24 before a different judge.
25 MR. BANUELOS: Emergency situation. There
Proceedings
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1 were two aspects for relief.
2 The first was with respect to suspension
3 of visitation and the second was with respect to the
4 fact that the plaintiff as of May 31 will find
5 herself homeless.
6 THE COURT: Let's address that.
7 There was no urgency as to the first part.
8 That should not be the emergency part of the
9 application. There was no emergency.
10 MR. BANUELOS: We needed to file this
11 motion immediately given the fact that the plaintiff
12 finds herself homeless.
13 MR. BERKE: In February 2 or February 4,
14 the plaintiff signed an agreement with the former
15 landlord to vacate on May 31.
16 If she claims on Friday, Memorial Day
17 weekend, that she has no place to stay when she, all
18 of those months, and I can't tell you how many times
19 I tried to contact counsel trying to work something
20 out.
21 THE COURT: Is there a housing court
22 eviction?
23 MR. BERKE: On consent.
24 THE COURT: You know how housing court
25 works. I can file an emergency order to show cause
Proceedings
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1 and get a stay. I can call housing court to get a
2 stay if that's the issue.
3 MR. BANUELOS: Plaintiff did not have the
4 means to prosecute that action.
5 She entered into that stipulation --
6 THE COURT: You know housing court well
7 enough. You can reverse it. File an emergency.
8 MR. BANUELOS: Part of the reason
9 plaintiff has been evicted is due to --
10 THE COURT: -- immediate emergency. Let's
11 clear that. That's three days from now. Four days
12 from now you are saying she will be thrown out.
13 Where is the housing court order?
14 I want to see that order.
15 MR. BANUELOS: I don't believe the motion
16 is Exhibit No. 2. My client may have a copy.
17 THE COURT: I am trying to help her.
18 I will have my clerk call so that they do
19 not evict overnight.
20 Do you have a copy of her eviction?
21 Hand it up.
22 (Whereupon, a document is handed to the
23 court.)
24 THE COURT: Let me look at this one
25 moment. Members of his family are evicting her?
Proceedings
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1 MR. BANUELOS: They have been threatened
2 by the defendant and members of his family to --
3 THE COURT: I read the papers.
4 MR. BERKE: She posts on the internet
5 posts in the community that the land lady's son, who
6 is a foster mother is a sex abuser. She is
7 slandering this guy. She did the same thing to my
8 client and in different forms.
9 You want her to live in her home when she
10 puts that kind of stuff out all over the place about
11 the son.
12 But aside from all of that, when I made a
13 motion, it had to be weeks ago, and it was held
14 across the street. I indicated that there is a
15 holiday coming up. I just wanted something
16 reasonable. He gets from Friday to Monday anyway.
17 If he can get from Friday to the end of
18 the Holiday, Tuesday or Wednesday -- they live close
19 together. They can't be together. She abuses the
20 system and has accused him five times of violating
21 orders of protection. He can't come near her.
22 Pickup and dropoff should be from the school.
23 THE COURT: Why can't we split the
24 holiday?
25 MR. BANUELOS: The defendant had the
Proceedings
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1 children during the holidays last September. I am
2 informed, pursuant to the stipulation that's
3 currently in place, plaintiff is scheduled to have
4 the children during this next holiday.
5 MR. BERKE: I will be happy to split the
6 holiday.
7 MR. BANUELOS: Children should stay with
8 the plaintiff during the next holiday. Defendant
9 did not give her visitation during the last holiday.
10 MR. BERKE: That's not accurate.
11 THE COURT: She needs to go into housing
12 court to file an order to show cause.
13 MR. BERKE: There was a confidential
14 report. I can't reveal it. There was a
15 confidential report appointed by Court Referee
16 Yellin with respect to these parties, and she
17 rendered a report.
18 I have a copy I obtained from the court
19 file, permission of the prior judge on the case
20 before you came onto this and wanted permission
21 because I am barred without a court order to give a
22 copy of that to the psychiatrist evaluation and to
23 the forensic.
24 THE COURT: I believe the forensic is
25 going to receive information from the attorney for
Proceedings
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1 the child.
2 CHILDREN'S LAW CENTER: So at this point
3 if, your Honor, wants me to, I can --
4 THE COURT: We're here for fact finding.
5 We're not looking to hide things. The one doing the
6 forensic should have all information necessary to
7 provide the court with the proper evaluation.
8 CHILDREN'S LAW CENTER: In terms of the
9 prior judge, I don't know if I have that
10 information.
11 MR. BERKE: I have it.
12 THE COURT: Submit it to the court, and we
13 will put a packet together to go to the forensic
14 evaluator. Who did we agree on? Have my resource
15 coordinator put a packet together to render a
16 neutral evaluation. That's to make a decision in
17 the best interest of the children. That's what this
18 is all about.
19 I will let the mother have her holiday.
20 I don't want issues --
21 THE FATHER: This was my weekend and this
22 was my day.
23 THE COURT: The holiday commences on --
24 THE FATHER: Tuesday night and never did
25 she have -- she always kept all of the holidays.
Proceedings
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1 Any time I missed, she would --
2 THE COURT: Let her have this holiday.
3 THE FATHER: We split it 50/50.
4 THE COURT: My concern is transfer of the
5 children. I don't want trauma.
6 THE FATHER: It's my weekend, the weekend
7 of this holiday.
8 THE COURT: You are getting Thursday night
9 from school. Get the children Monday to school.
10 The holiday starts Tuesday night. Let her have his
11 coming holiday. You were supposed to work out
12 holidays. I don't know what happened since then.
13 MR. BERKE: It didn't happen. I reminded
14 her it didn't happen again. I attached it to my
15 motion papers, and I got no response.
16 THE COURT: We will be back here June 18
17 and we can work out a -- by then, a holiday and
18 summer plan where the parties can travel with the
19 children.
20 MR. BANUELOS: With respect to our request
21 for support in the amount of $30,000, if I may say
22 briefly, the plaintiff does not have any means,
23 frankly, at this point, nor the time to go into
24 housing court.
25 THE COURT: There was no fee in housing
Proceedings
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1 court. Someone there helps you as a pro se
2 litigant. They help pro se litigants. If she is
3 being evicted this Saturday, she better run to
4 housing court.
5 MR. BANUELOS: There is no time left.
6 THE COURT: Get an emergency stay the day
7 you go in. Go to the self-help desk.
8 MR. BANUELOS: She will find herself
9 homeless.
10 THE COURT: We will adjourn as previously
11 stated. Father will enroll the children in
12 counseling.
13
14 * * *
15 (Whereupon, the matter was concluded.)
16
17 The foregoing is hereby certified to be a
18 true and accurate transcript of the proceedings
19 as transcribed from my stenographic notes.
20
21
22 ________________________
SUSAN OLIVA, CSR.
23 SENIOR COURT REPORTER
24
25