Motion,Ex Parte: Derrick G Davis v. Cecilia Nunez De Davis

On June 29, 2017 a Motion,Ex Parte was filed involving a dispute between Derrick G Davis, and Cecilia Nunez De Davis, for Other Matters - Contract - Other in the District Court of Monroe County.

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MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 2519855

Book Page CIVIL

Return To: No. Pages: 11
DAVID SCOTT STERN
One East Main Street Instrument: MEMO OF LAW
Rochester, NY 14614
Control #: 202010161003
Index #: I2017006742

Date: 10/16/2020

DAVIS, DERRICK G Time: 5:55:11 PM

DE DAVIS, CECILIA NUNEZ

State Fee Index Number $165.00
County Fee Index Number $26.00

Total Fees Paid: $191.00 Employee:

State of New York

MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

JAMIE ROMEO

MONROE COUNTY CLERK

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SUPREME COURT OF THE STATE OF NEW YORK .

COUNTY OF MONROE

DERRICK G. DAVIS,
Plaintiff,
MEMORANDUM OF LAW
-v-

Index No. 17-6742

CECILIA NUNEZ DE DAVIS,
Defendant.

PRELIMINARY STATEMENT

Defendant Cecilia Nunez De Davis, by and through her attorney David S. Stern, Esq.,

submits this Memorandum of Law in support of her Motion to Dismiss

The lawsuit at hand is another in a series of attempts by the Plaintiff, Derrick G. Davis, to

eschew his familial obligations. The Plaintiff has a shameless history of aband0ñiñg his family,

emotionally and physically. The Plaintiff now resorts to speciõüs claims and spurious

conclusions in a last-ditch effort to neglect his child support obligation. As the court will plaiñly

see, the Plaintiff is not the victim he paints himself to be, but a manipulative egotist willing to

resort to unethical and unlawful means to further his own, selfish purposes.

Plaintiff and Defendant met in the Dominican Republic. They dated for three to four

years and had two children together. The Plaintiff and Defendant were married on or about April

20, 2010 in the Dominican Republic. Defendant lived in the Demir:icañ Republic while the

Plaintiff rem±ed at his primary residence in New York State. The Plaintiff herein invited the

Dafandant and their two children to live with him in the United States in the year of 2011. The

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Defendant and the children moved into the Plaintiff's home in Rochester, New York on February

17, 2012.

Plaintiff grew increasingly cruel to the Defendant during their marriage, belittling her and

abusing her verbally and physically. In or about June of 2013, the Defeñdant was deceived by the

Plaintiff herein into believing a necessary medical procedure for one of her children was not

available in the United States but was available in the Domiñicâñ Republic. The Defendant has

since been made aware that this procedure is,in fact, available in the United States. The Plaintiff,

Defendant and their two children traveled to the Dominican Republic on July 17, 2013, with

return tickets purchased for July 31, 2013. On or about July 24, 2013, the Plaintiff herein said

that he had to head to the grocery store to pick up some items. He did not return. The Plaintiff

in gone to the airport, cancelled the return flights for the Defendant and the two
had, fact,

and flew back to the United the Defandant and the two children in
Children, States, abandoning

the Dominican Republicañ. Moreover, the Plaintiff stole the passports, visas and other

documentation of the Defendant and their two children to them in Domi=4= Republic.
entrap

The Defendant was only able to return home with the help of the United States Embassy and was

unable to obtain replacement documents for her children. The children remained in the

Dominican Republic for seven months with the Defendant's parents.

A divorce action was commenced by the Plaintiff against the Defendant on August 29,

2013. The Plaintiff and Defendant entered into a Separation and Settlamant Agreement dated

December 15, 2014. As part of the Separation and Settlement Agreement, the Plaintiff agreed to

pay basic child support to the Defendant. The Defendant was to retain sole custody subject to the

Plaintiff's rights of visitation. The Supreme Court of the State of New York entered a Judgment

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of Divorce on or about April 10, 2014, which incorporated the Separation and Settlement

Agreement in its entirety.

PROCEDURAL HISTORY AND CASE FACTS

On or about June the Plaintiff filed a Summn= and Complaint against the
24, 2017,

Defêñdant herein, alleging causes of action for Fraud, Estoppel for an order of a DNA test to

conclusively establish paternity, and Constructive Abandonment against Defendant. Defendant

filed an Answer with Discovery Demands on July 28, 2017.

Defendant now moves this Court to for an Order granting Defendant Smmnary Judgment

and dismissing the Plaintiff's Complaint, with prejudice, and awarding the Defendant Costs and

Attorney's Fees in accordance with this action and for any such further relief the Court deems

proper.

Plaintiff's Complaint is rife with lies and half-truths designed to portray a false narrative

that he issomehow the victim of the Defêñdañt's malicious actions. The Plaintiff claims that the

misrepresented"
Defendant "by deceit and fraud that the Plaintiff was the biological father of the

family's children. The Plaintiff makes no indication as to how the Defendant commuted this

fraud. The Plaintiff readily admits that a DNA report, issued on September 9, 2011 did not

exclude the Plaintiff as the biological father of the children. He points to a processing

technicality but does not provide any evidence that would indicate that he isnot the father.

Plaintiff seems to think that a DNA test is warranted simply because of his allegation he isnot

their father.

Most outrageously, the Plaintiff now contends that itwas in fact the Defendant who

abandoned the marital residence "on or about 2013.... the non-
him, leaving July 9, [removing]

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well."
marital children from the PlaintifPs household as As aforementioned, the Plaintiff and

Defendant went on a to the Dominican Republic on 2013. The Defendant now
trip July 17,

believes that the Plaintiff's motivation for this trip had always been to provide an avenue to

abandon the family, which he did on July 24, 2013. It seems that the Plaintiff has used the

Defendant's stay at a Women's Shelter, which occurred after the Plaintiff made threats of

"abandonment"
violence against her, as an incident of for the purposes of evading basic child

support.

"specious"
The plaintiff claims that the Defendant made allegations of domestic violence

agai=t the Plaintiff, without any reference to which particular allegations were false, or in what

"pretext"
manner these allegations were a for the defendant's panding citizenship application.

Plaintiff readily admits that he consented to a Permanent Order of Protection on November 9,

2013 in furtherance of the Family Offense Petition dated August 20, 2013.

"frustrated"
Plaintiff claims that the Defendant has the rights of access to the children and

that is an effective form of abandonment. Discounting the obvious irony in the Plaintiff, who

abandoned his family in Dominican Republican, stating that his children have effectively

abandoned him, the Plaintiff consented to a Pe..-nt Order of Protection. He plaiñly agreed to

the terms of the Judgment of Divorce. Moreover, the Plaintiff has not once attempted to visit the

children since the Judgmeñt of Divorce. Now the Plaintiff feels entitled to amend that order per

his convenience, concoctiñg whatever fiction necessary to further this objective.

The Plaintiff does not have the right to Order a DNA test to establish paternity, much less

a judgment for total child support paymanta The Plaintiff abandoned his
money family,

commenced a divorce action against the Defendant and now regrets the terms of child support

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pursuant to that Judpnent of Divorce. This lawsuit, like the abandonment in the Dominican

Davis'
Republic in 2014, represents the Plaintiff Derrick G. coñtiñüed failure to accept any

responsibility for his family or his reprehensible actioñs against them.

Point 1 - PLAINTIFF'S ACTION IS BARRED BY DEFENSIVE MUTUAL

COLLATERAL ESTOPPEL

Collateral estoppel precludes relitigating an issue that was raised in a prior action

(Buechel v. Bain 97 N.Y. 2d 295, 316-317, 740 NYS 2d 252 (221)). The law imposes the

doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that

would work injustice on the person against whom enforcement is sought and who, while

on the party's has been misled into a detrimantal change of
justifiably relying opposing actions,

position (see generally Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184,

436 NE2d 1265, 451 NYS2d 663 [1982]). The fundamental inquiry for the application of

collateral estoppel is whether relitigation should be permitted in a particular case. Of

consideration is the fairness to the parties involved, the conservation of the court's limited

resources, and the societal interests in consistent and accurate results. No rigid rules are possible

because even these factors may vary in relative importance depending on the nature of a case's

proceedings (Ibid.).

Two requirements must be met for collateral estoppel to be invoked; there must be an

identity which has necessarily been decided in the prior action and is decisive of the present

action, and; there must have been a full and fair opportunity to contest the action now said to be

controlling. (D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY 2d 649 664 563 NYS 2d 24

(1990)). The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive

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issue was decided in the prior action. The party to be pracluded bears the burden of

demem+rating the absence of a full and fair opportunity to contest the prior determination.

(Buechel 97 NY2d at 304.) Defensive mutual collateral estoppel is used against the Plaintiff of a

prior action in a subsequent suit, preventing re-litigation on an issue already decided. The issue

of child support, and of the paternity of the subject children, was already decided in the prior

matrimonial action. Plaintiff also had a full and fair opportunity to contest the previous decisions.

In the Divorce action, the Plaintiff engaged in significant motion practice resulting in years of

litigation. Accordingly, the prior matrimonial decision is determinative against the Plaintiff

based upon principles of defensive mutual collateral estoppel.

Point 2 - PLAINTIFF'S IS ESTOPPED FROM CHALLENGING PATERNITY

In circumstances wherein a husband had private doubts of the paternity of his children,

but never sought to resolve the issue before the execution of the separatioñ agreerseñt and the

entry of the judgment of divorce, the husband should be equitably estopped from pursuing his

paternity challenge. (Richard B. v. Sandra B. B., 1995 N.Y. App. Div. LEXIS 3720, *7, 209

A.D.2d 139, 143, 625 N.Y.S.2d 127, 129) While there may be certain equitable considerations

militating in the husband's favor, in the final analysis itis the child's best interests which are

paramount. The Court has consistently estopped plaintiffs from challenging paternity to avoid

their support obligations (see, e.g., Matter of Commissioner of Social Servs. of TompMns County

[Barbara A.] v Gregory B., 211 AD2d 956; Richard B. v Sandra B. B., 209 AD2d 139; Terrence

M v Gale C., 193 AD2d 437; Matter of Monte!one v Antia, 60 AD2d 603). The court previously

held that a plaintiff who held himself out as the father of the subject child at the time of the

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divorce and only raised the issue of paternity 2 years after the child's birth was estopped from

avoiding child support payments. (Mancinelli v. Mancinelli, 203 A.D.2d 634, 635, 610 N.Y.S.2d

104, 105, 1994 N.Y. App. Div. LEXIS 3601, *2). Accordingly, the plaintiff at hand ought to be

equitably estopped from reñoüñcing paternity to avoid child support payments when he held

himself out as the father of these children for over 16 years.

Point 3 - PLAINTIFF CANNOT RAISE THIS SEPARATE ACTION

ofjudgments" principal,"
. The "finality is an "absolute basic which is "essential to the

process."
rnaintanance of an orderly, efficient and economic adjudicative Pietri v. New York City

Health & Hosp. Corp., 169 A.D.2d 100, 107 (1st Dept. 1991). "Postjudgment motion practice [or

plenary actions] cannot be permitted to displace and undermine the accepted process by which

appeal," applied"
judgments are reviewed on and "the rule has long been settled and inflexibly

that a trial court, except for very limited circumstances such as those in CPLR 5015, is "without

judgment." taken"
jurisdiction to amend the Id.,at 105. When "no appeal has been or "the

course,"
appellate process runs its the Judgment becomes final. Id., at 107. See also People v

Varenga, 26 N.Y.3d 529 (2015) ("society's interest in the finality of judgments [is]

'formidable'").

Under the doctrine of res judicata, a final judgment on the merits rendered by a court of

competent jurisdiction generally bars a subsequent action between the same parties on the same

cause of action. N.Y. C.P.L.R. 5013 provides that a judgment dismissing a cause of action before

the close of the proponent's evidence is not a disminnal on the merits unless itspecifies

otherwise, but a judgment dismissing a cause of action after the close of the proponent's evidence

is a dismissal on the merits unless itspecifies otherwise (F. v. F., 114 Misc. 2d 981, 981, 453

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N.Y.S.2d 278, 279, 1981 N.Y. Misc. LEXIS 3496, *1). In the context of a matrimonial action, a

parties'
final judgment of divorce settles the rights pertaiñing not only to those issues that were

litigated, but also to those that could have been litigated. (Xiao Yang Chen v. Fischer, 6 N.Y.3d

94, 98, 843 N.E.2d 723, 724, 810 N.Y.S.2d 96, 97, 2005 N.Y. LEXIS 3344, *1, 2005 NY Slip

Op 9572, 1). Plaintiff states that his belief that the patemity of the children is up for dispute is the

DNA Test issued in 2011, which he believes was improperly applied. However, the Plaintiff at

no point brought this up during the prior Divorce Action, despite being replete with opportunity

to do so. Accordingly, his claim is barred by the doctrine of Res Judicata. Plaintiff could, ifhe so

wishes, motion to amend the Judgment of Divorce. However, this separate claim is barred.

Point 4 - SANCTIONS ARE APPROPRIATE

Pursuant to N.Y.C.R.R § 130-1.1, this Court has the authority to "impose financial

sanction upon any party or attorney in a civil action or proceeding who engages in frivolous

conduct."
Conduct, as defined in N.Y.C.R.R. § 130-1.1(c), is frivolous if:

(1) itis completely without merit in law and cannot be supported by a reasonable argument for

an extension, modification or reversal of existing law; (2) itis undertaken primarily to delay or

prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it

asserts material factual statements that are false.

Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under

this section. In determining whether the conduct undertaken was frivolous, the court shall

consider, [*15] among other issues the circumstances under which the conduct took place,

including the time available for investigating the legal or factual basis of the conduct, and

whether or not the conduct was continued when its lack of legal or factual basis was apparent,

should have been apparent, or was brought to the attention of counsel or the party. 22 NYCRR
130-1.1.

Plaintiff s complaint is a textbook illustration of sanctionable conduct. First, since the Settlement

Agreement and Judgment of Divorce clearly specifies the Plaintiff's child support obligation, the

lack of a colorable claim should have been apparent to Plaintiff s counsel.

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Furthermore, there is littledoubt that Plaintiff filed this lawsuit to harass and maliciously

injure the Defendant Plaintiff has had a history of evasive conduct in efforts to abandon,

emotionally and physically, his family. The Settle-t Agreement clearly specifies that the

Defendant is due basic child support, and that the Plaintiff and Defendant have produced two

biological children. Rather than the Defendant the support, Plaintiff has conjured up a wild
pay

theory of paternity, and spent his money on this frivolous complaint.

Plaintiff also asserts material factual statements which are false. The most egregious of

these is the accusation that the Defendant and the children abandoned the Plaintiff on or about

July 9, 2013 and that he had not seen them thereafter. The Plaintiff completely ignores the

family's trip to the Dominicañ Republic later in in July 2013. The Plaintiff's choice to ignore

these events is understandable, coñsidering his contemptible behavior towards the Defendant

herein and their children. The Plaintiff asserts such material falsehoods for the sole purpose of

avoiding the support obligation which he assented to in the Stipulation of Settlement.

Plaintiffs counsel failed to discharge their obligation to either dissuade Plaintiff from

pursuing this claim or withdraw as his counsel. See, e.g., Martian Entertain;nent, LLC v. Harris,

12 Misc.3d 1190(A), 824 N.Y.S.2d 769 (Sup. Ct. N.Y. Co. 2006); Heilbut v. Heilbut, 18 A.D.3d

1, 9, 792 N.Y.S.2d 419 (1st Dep't 2005). Instead, counsel elected to file a complaint that is

frivolous within the meaning of Part 130-1.1. Sanctions should accordingly be awarded against

Plaintiff and his counsel. See, e.g.,Jaliman v. Selendy, 7 Misc.3d 1007(A), 801 N.Y.S.2d 234

(Sup. Ct. Westchester Co. 2005) [sanctions are appropriately awarded where "litigation . .. can

only be explained as haviñg been motivated by the desire to harass the defendants"]. See also,

Matter of Gordon v. Marrone, 155 Misc.2d 726, 590 N.Y.S.2d 649 (Sup. Ct. Westchester Co.

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1992),affd, 202 A.D.2d 104, 616 N.Y.S. 2d 98 (2d Dep't 1994), IV denied, 84 N.Y.2d 813, 623

N.Y.S.2d 181 (1995) [legal fees and expenses are appropriately awarded under Rule 130.1 based

solely on petitioner's improper motives].

CONCLUSION

Plaintiff has brought this lawsuit in furtherance of his unscrupulous goal in completely

severing himself from the family whom he abandoned in a foreign country in 2013. The Plaintiff

makes brazen lies concerning the truth of his relationship with the Defendant and their children

all in an effort to wish away his child support obligation. A DNA test is not warranted in this

matter, and further the action as a whole is barred by the doctrines of res judicata and collateral

estoppel.

For all of these reasons, this Court should (i)grant Defendant's motion to dismiss the

complaint with prejudice; (ii)impose sanctions on plaintiff and his counsel; (iii)award to

attorneys'
Defendant costs in the amount of actual expenses and reasonable fees in an amount to

be determined at hearing, and (iv) award to Defendant such other and further relief.which as to

this Court seems just and proper.

Dated: October 13, 2020

Rochester, New York
LLI T STE ALABRESE, LLP

D Stern, Esq.
Office & P.O. Address:
One East Main Street

Rochester, New York 14614
Tele: (585) 232-4724
Fax: (585) 232-6674
Email: dstern@elliottstern.com

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Motion,Ex Parte: Derrick G Davis v. Cecilia Nunez De Davis

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