Judicial Reports: Hearing Loss
By Jason Boog
jasonboog@judicialstudies.com
Posted 11-28-07
A recent murder raises questions about divorce court shortcuts. Is justice sped up, justice denied?
In 2005, a Queens couple — Dr. Mazoltuv Borukhova and Dr. Daniel Malakov — filed for divorce. The case landed in Justice Strauss’s busy courtroom (according to records from the Office of Court Administration, 126 divorce matters have been filed before him already this year), and negotiations stalled over issues of custody until this autumn.
In October, Strauss granted temporary custody of the couple’s 4-year-old daughter to Dr. Malakov. The mother’s attorney, Florence M. Fass, appealed but was denied a few weeks later. The girl was transferred to her father’s custody on October 22.
Six days later, a gunman shot and killed Dr. Malakov in front of his daughter at a Queens playground. Last week, an relative of Borukhova was arrested for the shooting; allegedly, his fingerprints covered the homemade silencer used in the killing.
In a New York Times article following the murder, attorney Fass characterized Justice Strauss’s custody ruling as “highly unusual” because he had reached the decision without a courtroom hearing.
Attorneys for both parties did not return repeated calls for comment, and Justice Strauss did not respond to an interview request. (He is now on vacation).
No matter what the result of the upcoming murder trial, the case raises a central question about courtroom efficiency and volatile divorce cases: Do crowded dockets encourage judges to skip proceedings that could defuse time-bomb cases?
The question is even more acute, given that Justice Strauss was twice reversed in the past year for leapfrogging the hearing process and skipping a motion to compel discovery.
Two prominent matrimonial law advocates offered conflicting opinions about judges granting orders without hearings.
Richard B. Alderman — a matrimonial attorney at the Syracuse firm of Alderman & Alderman who has never appeared before Justice Strauss — contended that judges often conclude, justifiably, that a hearing is unnecessary: “I think it’s appropriate. You’re not wasting the litigant’s and the court’s time.”
He added one caveat: “If there is a factual dispute — like domestic abuse or child abuse, when one side says one thing and the other side says another—then it’s quite clear that you have to have a hearing before you can make a temporary order.”
By contrast, Marcia Pappas, President of the National Organization for Women-New York State, Inc. (NOW/NYS), worried that judges could endanger children through a push for efficiency.
“I think the children are the people who suffer the most when judges rush, when they make a judgment that isn’t clearly investigated — because children can then be left in the hands of the abusive parent,” she concluded.
Time will tell if the lack of a custody hearing affected the Malokov murder case. In any event, as multiple attorneys noted, this kind of rapid-fire decision is a key reason Strauss’s courtroom runs as quickly as it does.
Strauss’s courtroom keeps a tight schedule with a crowded docket, partly through his push for pre-trial, in-person conferences with attorneys — an alternative to costly trials and courtroom hearings. Two Queens matrimonial attorneys praised Strauss’s “efficient” courtroom, where he disposed of 394 cases in 2005.
Compared to the two other matrimonial judges in Queens, Strauss’s disposition rate falls in the middle: Jeffrey D. Lebowitz disposed of 404 cases in 2005, while Maryellen Fitzmaurice disposed of 106. That same year, Strauss spent 242 days in the courtroom — beating the citywide average (211) by a month of session days.
“He likes to move these cases along in an efficient and cost-effective manner,” explained Vincent F. Stempel, Jr., a veteran of Strauss’s matrimonial bench and the former chair of the New York State Bar Association’s Family Law Committee.
Indeed, Stempel said that exactly none of his “several” divorce cases before Strauss (since the justice took the bench in 2002) has ever gone to trial. All settled first.
“It’s much better to control the case to resolve it and get everybody on with their lives. He’s very good at that,” said Stempel, citing the high fiscal and emotional toll of divorce trials as the best reasons for Strauss’s conferencing style.
Stempel actually testified about efficiency problems in the divorce courts in front of Chief Judge Judith S. Kaye’s 2004 New York State Matrimonial Commission — a group of psychiatrists, lawyers, judges, and scholars tasked with reforming the divorce process in the state.
“When we try to expedite the case, we are doing that in the parties’ best interests. The sooner the better,” concluded Stempel.
One court activist disagreed, explaining that the informal nature of these judicial conferences — outside of the safety of the courtroom — left women little protection. “Many times women are afraid to speak up during the conferences because they are terrified of retribution [in the time period before court protection might arise],” said Pappas, speaking for NOW.
While not commenting specifically on the Malakov divorce, she was adamant that the practice of conferencing without a trial could be harmful. “I don’t think that we should always assume that when someone is quick that that’s a good thing. It doesn’t necessarily mean that the judge is being efficient.”
Strauss was reversed twice in the last year for shortcuts the Appellate Division, Second Department found inappropriate.
In its November 2006 reversal of Strauss in Sheikh v Basheer, the appeals court found that the judge should have held a hearing before he ordered a man to pay $50,000 in attorney’s fees. Click here for Reversal Report coverage of the case: “The Supreme Court erred in awarding the defendant an attorney's fee without first conducting an evidentiary hearing. Under the circumstances of this case, an evidentiary hearing was necessary to explore in a meaningful way the value and time of the claimed services of counsel.”
In January, Strauss was reversed for denying a wife’s discovery motion over how much support and maintenance the husband would owe. The Appellate Division said the judge was too hasty in his dismissal, writing that the law required a more thoughtful analysis of the husband’s income:
“[T]he plaintiff may have a valid claim for increased maintenance. However, since this issue was not resolved on the papers submitted, neither party was entitled to summary judgment. . . . In view of this conclusion, the plaintiff's motion to compel discovery should have been granted,” wrote the court as they reversed Strauss in Awerman v Awerman. Click here for Reversal Report coverage of the case.
Notwithstanding these cases, as a general matter, however, Queens matrimonial attorney John A. Gemelli defended Justice Strauss’s streamlining.
“The judge is taking a hands-on approach. That’s an admirable quality that I wish more judges would do. . . . He traditionally tries to eliminate issues so people can focus on the salient issues of the case,” he explained. “Strauss will tell people, ‘Trial time is very limited; let’s try to eliminate issues so we can focus on the real issues — such as custody.’ ”
A FRUSTRATED POL
The Malakov divorce isn’t the first high-profile divorce to cross Strauss’s docket.
In 2005, Strauss concluded a high-profile mobster divorce, overseeing the separation of Catherine and Peter Gotti. The divorce agreement granted his ex-wife a split of his $1,900-a-month sanitation pension and the family home, ending a three-year divorce that began when her husband, the brother of famed mobster John Gotti, was arrested in 2002 on racketeering charges.
As an attorney, Strauss had a highly visible profile in the Queens legal community. In 1974, he mounted an unsuccessful bid for city council, then spent the next 20 years working as a private attorney, building political connections
He served as president of the Queens County Bar Association in 1990, and chaired the Committee on Character and Fitness for the Second Department from 1991 to 2001. In addition to these responsibilities, he was a Democratic district leader in Forest Hills, Queens for five years.
He kept a part-time, $27,000-a-year post as a Board of Elections attorney for sixteen years, but was quietly removed from that political post after he mounted a 1991 primary campaign for a city council seat — running against the party-backed candidate.
During that intense election season, The New York Times quoted Strauss as saying, "The only job I ever, ever wanted since I was 16 years old was to go to the City Council.”
"I guess you could call it party discipline," former Queens party boss and councilman Thomas J. Manton told a Newsday reporter. "There was some feeling that there are loyal people out there . . . and while he was free to do what he wanted, he shouldn't be rewarded for it. It's nothing personal."
Yet in 2000, when a Newsday staff writer asked Strauss about a rumor that he would run for city council again, he said, "Oh, no . . . I'm 61 years old and have no intention of running for political office."
It wasn’t until 2001 that the Democratic Party finally acknowledged Strauss again, granting him an endorsement for Supreme Court — he was elected in a pro forma election where a slate five Democratic-endorsed candidates swept the five spots on the ballot.
Posted by Jason on November 28, 2007 12:50 AM to Judicial Reports