In Rare Move, Receiver Named
to Pay Lawyer Fees in NY Divorce

By Mark Fass
New York Law Journal
May 21, 2009

In a contentious Long Island divorce proceeding, a judge has appointed a receiver to collect the rent from the husband's real estate holdings to ensure his payment of his wife's on-going legal expenses.

Supreme Court Justice Robert A. Ross of Nassau County cited the need for a level playing field, as well as the husband's consistent "recalcitrance," as grounds for the "drastic remedy" of appointing a receiver.

"The [selection of] an appropriate enforcement method is entirely necessary and appropriate and consistent with the statutory mandate to 'consider the circumstances of the case and the respective parties,'" Justice Ross held in Wasserman v. Wasserman, 201929-06.

"In this instance, the imposition of such a drastic remedy is buttressed by the pattern of non-payment of expenses relating to the children's summer camp, previous orders relating to legal fees, the finding of discovery obfuscation, and this enforcement proceeding that has been occasioned by non-compliance."

Cheryl and Harold Wasserman married in February 1987. Ms. Wasserman initiated divorce proceedings in June 2006.

Over the next three years, Mr. Wasserman failed on three occasions to comply with court orders requiring him to pay Ms. Wasserman's legal fees, including, most recently, an April $25,000 pendente lite order, according to Justice Ross' decision.

Mr. Wasserman also has failed to pay agreed-upon summer camp expenses for the couple's children and engaged in "dilatory" discovery tactics, Justice Ross added.

In the present motion, Ms. Wasserman sought a money judgment for the pendente lite fees, as well as the appointment of a receiver to oversee the sequestering of Mr. Wasserman's income from commercial real estate.

Last year, according to the decision, Mr. Wasserman earned more than $344,000 from his real estate holdings. In September, a judicial hearing officer determined the property's appreciation was not a product of Mr. Wasserman's efforts, and therefore Ms. Wasserman was not entitled to an equitable share.

In a decision handed down this week, Justice Ross granted Ms. Wasserman's motion. The court relied on Domestic Relations Law §243 and, among other cases, Rose v. Rose, 138 AD2d 475.

DRL §243 states, in part, that if a party in a matrimonial action fails to pay counsel fees that he is required by court order to pay, "the court may cause his . . . personal property and the rents and profits of his or her real property to be sequestered, and may appoint a receiver thereof."

"In addition to this statutory authority," Justice Ross wrote, "[Rose] gives the Court the discretion 'to sequester assets where an obligated party fails to make any payment required by the terms of such an order.'"

Michael N. Klar in Carle Place represented Mr. Wasserman.

Mr. Klar said he will seek a stay tomorrow from the Appellate Division, Second Department.

"He has not been able to pay any of the money he owes because he does not have it," Mr. Klar said.

Stephen Gassman of Gassman Baiamonte Betts & Tannenbaum in Garden City represented Ms. Wasserman. Mr. Gassman did not return a call for comment.