The Court, in its deliberations, has considered the following papers in these pendente lite motions for relief:1. Notice of Motion and supporting papers2. Notice of Cross Motion and Supporting papers3. Affidavit in Opposition and in Support of Cross m Motion and supporting papers4. Affidavit in Reply and supporting papers5. Reply Affidavit in further Support of Cross Motion The parties were married on October 14, 1989. During the parties’ marriage, the plaintiff worked as a medical doctor specializing in obstetrics and gynecology. It is undisputed that plaintiff’s earnings were used to support the parties during the marriage.Plaintiff is currently employed at Good Samaritan Hospital in West Islip, New York, as a W-2 employee. He also operates a small part-time private office practice — S OB/Gyn PC (“OB”)1 and is on the staff of Southside Hospital in Bay Shore which pays Shore for his services. On or about October 14, 2014, plaintiff performed a bilateral ovary removal upon one of his patients at Good Samaritan Hospital, which resulted in a malpractice action being filed in 2015 against plaintiff, his practice, and Good Samaritan Hospital.2 At the time of the filing plaintiff was covered by a malpractice insurance policy with Oceanus Insurance Company (“Oceanus”). Oceanus filed for liquidation on September 2, 2017. Thereafter, on October 18, 2017, this Court (Reilly, D.T., J.S.C.) issued an Order staying the malpractice action pending further direction of the Fifth Judicial Circuit Court, South Carolina, which has jurisdiction over the liquidation. The date of commencement of this action is February 1, 2016. Defendant is not seeking any interest in plaintiff’s medical practice.Plaintiff moves this Court for an Order seeking to classify any potential liability emanating out of the pending medical malpractice action as a marital debt including any and all legal fees, costs and related expenses in defending the action or, in the alternative, for an Order granting plaintiff partial summary judgment or permitting plaintiff to move in limine for an order determining that any potential liability emanating out of the pending medical malpractice lawsuit and related costs, fees and expenses is marital debt.Plaintiff avers that since the alleged malpractice arose during the marriage, any potential liability together with legal fees, costs and related expenses are presumptively a marital debt. Although plaintiff “believes” that no malpractice was committed and there will be no finding of liability, because the divorce will precede the malpractice trial, he needs to insure that any potential liability be paid from the marital estate. Plaintiff avers that the necessity for obtaining a judicial determination classifying any potential liabilities as marital is compelling because his malpractice carrier is in liquidation and, thus, unlikely to cover any potential verdict.Plaintiff further avers that since his earnings from his lengthy medical career were used to benefit the family and since he acted in good faith by maintaining malpractice insurance, any potential liability should be classified as joint.Plaintiff attaches an affidavit from AS, Esq. in support of his motion. Ms. Schwartz avers that she is representing the plaintiff in defense of the medical malpractice action and that the Court of Common Pleas in South Carolina entered an order on September 21, 2017, commencing liquidation proceedings with regard to Oceanus and further directed a stay of the underlying malpractice action which has been adopted by this Court by Order dated October 18, 2017 (Reilly, D.T., J.S.C.). A court-appointed liquidator for Oceanus informed her that Oceanus was cancelling all policies and would no longer defend or pay for the defense of its insureds. Ms. Schwartz avers that although “it is difficult for me to be precise, the potential liability in this matter could be as much as $500,000″ against plaintiff and that the cost of legal services “could reach $200,000 if the case goes to verdict which is a possibility because it appears that the plaintiff’s claim lacks merit…”.Plaintiff avers that “as a matter of law” this Court should determine that any possible malpractice liability should be treated as a marital obligation. Plaintiff states that since the income from the procedure was utilized for the family, any potential liability resulting from that procedure must be deemed a marital obligation. He cites that plaintiff acted in good faith and bears no responsibility for the financial collapse of Oceanus.Plaintiff avers that courts of this State have long recognized that marriage is an economic partnership in which spouses share in profits as well as losses and liabilities, Capasso v. Capasso, 129 AD2d 267; Gelb v. Brown, 163 AD2d 189 (lst Dept. 1990). Plaintiff further relies on Mahoney-Buntzman v. Buntzman, 12 NY3d 415 (2009), to support his position that when payments are made before either party anticipates the marital demise and where there is no fraud or concealment, the Court should not look back, but rather equitably distribute assets and obligations. Plaintiff further avers that expenses incurred prior to the date of commencement are marital and should be shared equally, Epstein v. Messner, 73 AD3d 843 (2nd Dept. 2010). Plaintiff cites Marin v. Marin, 148 AD3d 1132 (2nd Dept. 2017) and avers that this case is analogous to the facts in this case. In Marin the husband used loans to finance his medical practice, his separate property; however, the Court determined those obligations to be marital because the funds from the practice supported the marriage financially.Plaintiff includes in his affidavit allegations relating to defendant’s alleged drug abuse and wasteful dissipation, neither of which is at issue in his motion and will not be considered by the Court at this time.Defendant opposes plaintiff’s application and cross moves for an award of counsel fees. Defendant avers that plaintiff is the monied spouse and should be directed to pay attorney fees.Defendant avers that this Court cannot hold a party liable for a potential, future, speculative and non-existing debt, the amount of which is not ascertainable. Defendant avers that she is not a party to the medical malpractice action, has no standing and could not possibly be held accountable for liability stemming from plaintiff’s alleged malpractice.Defendant avers that this situation is analogous to a personal injury award, including malpractice awards, which is considered the separate property of the spouse receiving the funds. Thus, defendant contends that the damages owed by a spouse in a personal injury action should also be considered the separate property of the party causing the damages. Defendant avers that payment for future damages should be treated the same as recovery of damages. Defendant further avers that the facts herein are also analogous to disability awards and benefits, which have been considered separate property although premiums were paid with marital funds, Fleitz v. Fleitz, 200 AD2d 874 (3rd Dept. 1994).Finally defendant avers that the Court cannot consider testimony establishing the current value of a contingent debt arising from a malpractice award as that is not analogous to the Court’s ability to value retirement accounts, investment accounts and pensions.Defendant avers that plaintiff ceased making payments towards defendant’s legal fees because he believed she was taking an unreasonable position on settlement. Defendant’s position is that plaintiff is attempting to coerce defendant and that an award of counsel fees to the non-monied spouse is appropriate and well settled in order to enable the non-monied spouse to pursue the litigation on an equal footing. She requests that the plaintiff be directed to pay 100 percent of her fees as he is the monied spouse and defendant has no income. Defendant avers that she has advanced $30,000 for fees and seeks an award of $50,000 from plaintiff.Plaintiff opposes defendant’s motion and further supports his motion and avers that this Court should grant his motion based on the defendant’s admission that the malpractice occurred during the marriage and that she and the parties’ family benefitted from the husband’s employment; that malpractice liability is not “inherently personal”. Plaintiff avers that any obligation incurred by either party prior to the date of commencement is part of the “marital estate.” Plaintiff avers that even though the liability cannot be fixed at this time, it will be fixed in the future and that other ongoing liabilities which have a genesis in the marital estate must be shared equally. Plaintiff further avers that malpractice claims should be distinguished from personal injury awards and that defendant’s position in that respect is frivolous because the statute excluding personal injury awards from the marital estate includes no language to allow an interpretation that malpractice should also be a separate obligation. Plaintiff states that the legislative intent underlying the equitable distribution of marital estates supports his position.Plaintiff avers that defendant’s failure to include a Statement of Net Worth in her cross motion is fatal to her application for attorneys’ fees. Plaintiff cites defendant’s “tacit acknowledgment” of extensive marital waste as a result of a “protracted drug addiction.” Further, plaintiff states that any application should be referred to trial and that no award is appropriate since the defendant’s fees have been fully paid. Further plaintiff avers that equitable distribution will be sufficient for defendant to pay her own fees. Plaintiff denies that he refused to pay fees because of “unreasonable settlement demands” and makes unsupported allegations of marital waste due to defendant’s alleged drug addition. Plaintiff avers that he is experiencing financial difficulties as a “result of substantial cutbacks by is employer”.Defendant replies to plaintiff’s papers and reiterates that the time of occurrence of the malpractice and the fact that plaintiff provided support for the family at the time it occurred do not alone create a marital obligation. Defendant’s position is that simply benefitting from plaintiff’s income does not create a shared liability for malpractice committed by plaintiff. Further defendant points out that plaintiff offers no cases that are analogous to this precise issue.This issue appears to be one of first impression. What distinguishes this action from the usual matrimonial action involving a party who is a physician is that plaintiff is an employee and does not have a practice which generates any substantial income. If that were the case, the valuation of the practice would take into consideration any debts and perhaps any potential malpractice claim before distributing a spouse’s share of that practice, if any. This case involves a small part-time practice which plaintiff states receives monies from Southside Hospital, which is not a party to the malpractice action, and private patients. Those monies are is used to pay malpractice insurance, office expenses and a secretary and from which he takes home approximately $1,000 per month. The remainder of his earnings are paid to him by Good Samaritan Hospital.It is true that debts incurred prior to commencement, provided they arise for marital purposes, are considered the marital debts of both parties, Epstein v. Messner, 73 AD3d 843 (2d Dept. 2010)(emphasis added). Further, Courts should not second guess economic decisions made during a marriage, Mahoney-Buntzman v. Buntzman, 12 NY3d 415 (2009). However, the circumstances of this case do not neatly fit into these definitions as the plaintiff would have this Court conclude.First, this would not be a debt incurred in the ordinary course of a marriage nor can it be considered a debt for marital purposes. Rather it arises from the culpable conduct of one party; specifically, the alleged malpractice of plaintiff. Medical malpractice represents “a doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances,” Black’s Law Dictionary (10th Ed. 2014). Second, the potential debt did not arise for the benefit of anyone and to conclude that it is tied to an economic benefit conferred upon the parties is a tortured conclusion.Plaintiff’ reliance on Marin v. Marin is misplaced as that case involved the use of funds for the medical practice of one party, which practice was the sole means of support for the family, 148 AD3d 1132 (2nd Dept. 2017). The potential debt at issue here would not represent funds utilized to advance plaintiff’s practice or for any other marital purpose. Rather, the debt would represent compensation for plaintiff’s misconduct and/or unreasonable lack of skill alone.At least one court has determined that a spouse is not liable for debts incurred by the other spouse in criminal action arising from criminal conduct, See, Kohl v. Kohl, 24 AD3d 219 (First Dept.2005) (wife not responsible for loans utilized by husband to pay legal fees and fines associated with criminal action). Further, in another context, divorce or separation is a factor considered by the Internal Revenue Service in determining whether or not a party is an innocent spouse, See Internal Revenue Service Pub. 971. In this case, it is undisputed that defendant was not a party to or aware of the malpractice at the time it allegedly took place.Courts have uniformly treated personal injury awards as separate property not subject to marital distribution, See. e.g., Trajkovic v. Trajkovic, 98 AD3d 575 (2nd Dept. 2012) (proceeds from actions to recover damages for personal injuries are considered separate property of the spouse receiving same). The Court finds that this is analogous to damages arising from the personal, professional misconduct of one party.It is well settled that the Court has broad discretion to fashion appropriate awards based upon what is fair and equitable under the circumstances. This Court has concluded that it would be grossly inequitable to assess liability against the defendant should plaintiff be found guilty of malpractice. This situation is, in reality, the flip side of unjust enrichment and constitutes unjust indebtedness arising from his actions and his actions alone.The Court finds further that plaintiff’s requested relief is speculative as no finding of liability for the alleged malpractice has been made nor will a finding be made in the near future3. To ascertain the amount of the liability, if any, would require that this Court conduct a malpractice trial, the result of which would be non-binding and which would strain judicial economy. Further, there is a possibility that the liquidation proceedings against Oceanus could result in an amount, also unknown, allocated to any indebtedness arising from an adverse verdict against the plaintiff. There are also co-defendants who may or may not share in any liability, which is also speculative. On these bases alone, plaintiff’s application should be denied, See, e.g., Greenwald v. Greenwald, 164 AD2d 706, 719-20 (1st Dept. 1991).Based upon the foregoing, this Court finds as a matter of law that defendant cannot be held responsible for any indebtedness arising from a medical malpractice action against the plaintiff under circumstances where she is not seeking a share of plaintiff’s medical practice. Therefore, plaintiff’s motion is hereby DENIED in its entirety.With respect to defendant’s motion for attorneys fees, Domestic Relations Law §237 authorizes the court to direct either spouse or parent to pay counsel fees in order to enable the other to carry on or defend the action as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties (See, DeCabrera v. DeCabrera-Rosete, 70 N.Y.2d 879 (1987)). Case law has superimposed upon that statutory basis a number of criteria which are typically ripe for consideration and then application to the particular facts at bar, viz,a). The nature and extent of the services;b). Actual time spent and the necessity therefore;c). The nature of the issues involved;d). The amount of the fee involved;e). The professional standing of counsel;f). The results achieved; andg). The financial needs and circumstances of the parties.(See, Penavic v. Penavic, 60 AD3d 1026 (2d Dept. 2009); Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008); Rubenstein v. Rubenstein, 137 AD2d 514 (2d Dept 1988); Ahern v. Ahern, 94 AD2d 53 (2d Dept 1983)).Further, a court may grant interim counsel fees without first conducting a full evidentiary hearing (See, Cappelli v. Cappelli, 293 AD2d 438 (2d Dept. 2002); Meyer v. Meyer, 229 AD2d 354 (1st Dept. 1996)) based on such considerations as a party’s obstreperous conduct which unnecessarily protracted the litigation and the quality of the representation afforded the movant by her counsel (See DRL §237 (a); O’Shea v. O’Shea, 93 NY2d 187 (1999)).Defendant’s counsel is an experienced matrimonial attorney and her fees are reasonable under the circumstances. It is undisputed that plaintiff is the monied spouse. Plaintiff earns in excess of $400,000 per year; defendant is unemployed. The trial in this action is scheduled for October 10, 2018.Plaintiff avers that defendant failed to submit an updated Statement of Net Worth to support her claim for fees. Her Statement is dated December 20, 2016, which is too attenuated for the Court to assess her current financial situation. However, defendant cured this issue with the submission of an updated Statement of Net Worth in her reply papers, See, e.g., Feinstein v. Merdinger, 305 AD2d 115 (1st Dept. 2003).4 Thus, an award of counsel fees is appropriate.Accordingly, defendant’s application for attorney’s fees is GRANTED. Plaintiff shall pay directly to defendant’s counsel the sum of Twenty Thousand ($20,000) Dollars for counsel fees on or before October 15, 2018.Dated: Central Islip, NYOctober 1, 2018
