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Breaking Up is Hard to Do


In three recent New York divorce cases, the plaintiffs were surprised to learn that what they considered cruel treatment by their spouses was not cruel enough to end their marriages. These cases, along with a recent ruling involving the break-up of a same sex couple, casts light on the current state of breaking up in the state.

THE LIMITS OF CRUELTY

When Carol Gross testified that her husband of 37 years, Jerome Gross, “had physically forced himself on her sexually,” and “grabbed her, pulled at her, thrown her on the bed, and pushed her against the wall,” a Manhattan trial judge granted Ms. Gross a divorce on the grounds of cruel and inhuman treatment.

The Appellate Division of New York State Supreme Court disagreed. It ruled that the plaintiff had not proved her case. She must remain married to Mr. Gross and continue to live with him (unless she leaves the Upper West Side apartment that they share).

The Domestic Relations Law, which governs divorce, defines cruel and inhuman treatment as behavior “harmful to the plaintiff’s physical or mental health and makes cohabitation unsafe or improper.” But in a unanimous decision, the five judges – all of them men – on the appellate bench said that Ms. Gross’ testimony was vague and that ”plaintiff did not elaborate in any other way about what she meant in stating that the defendant had ‘forced himself on her sexually.’” The judges found, “In its vagueness and generality, this testimony could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. Moreover, plaintiff offered no evidence that she sustained any injuries as a result of this incident.”

Citing prior cases, including a 1976 case in which a “defendant severely beat plaintiff on two occasions causing bruises and black and blue marks,” the opinion in Gross v. Gross called “the absence of medical evidence here particularly telling.” The court decided, “At bottom, we are left to speculate as to the effects, if any, of defendant’s conduct on plaintiff’s physical and mental well-being.” In reversing the trial decision, the court commented that, apart from the alleged conduct, the couple had an otherwise civilized social relationship.

Around the same time, in another divorce case based on cruelty, a different trial judge rejected a husband’s claim of cruelty. In that case, Hearst v. Hearst, the husband said that his wife’s control of the couple’s money and property had exacerbated his many physical ailments and led his health to deteriorate. But both the trial and appeals courts found that the wife’s alleged actions did not constitute cruelty. Calling the situation an example of “marital discord,” the Appellate Division agreed that the trial court had acted properly when it denied the husband a divorce on grounds of cruelty.

And a recent divorce action labeled CL v. JL was not even permitted to go to trial when a Brooklyn judge dismissed the plaintiff’s complaint because of “a lack of particularity in the allegations.” The plaintiff – the wife in this case -- had accused her husband of “verbal tantrums, ... humiliating and vilifying the friends and relatives of the plaintiff,” and failing to support her and the household. The judge found that the allegations were too “vague to give husband notice so that he could defend against them.” It might have been different, the judge wrote, if for example, the marital home had been lost to foreclosure or had collapsed injuring the wife.

FINDING FAULT

New York does not have “no fault” divorce, in which a marriage can be dissolved without either party being found guilty of some kind of marital misconduct. In New York, the law requires that grounds for divorce be established unless a separation agreement has been in place for one year. (There is talk of reducing that time requirement, perhaps to as little as three months.)

A separation agreement does not assign blame but is a contract that settles the business between the couple – money, custody and so on. If a couple cannot reach agreement on all that, a marriage can be dissolved only if one party is found to be at fault. The fault grounds, in addition to cruel and inhuman treatment, include adultery, abandonment, or defendant’s imprisonment for three consecutive years.

Although some may see these cases as reasons to change the law and permit divorce without proof of fault, others point out that only a very small number of divorces in New York result in contested trials, where fault grounds must be alleged, proved and subjected to cross examination. In most cases, the defendant does not contest the plaintiff’s charges and the divorce is granted. In all of New York City in 2006, only 3,385 divorce actions or 11 percent of the 31,670 filed were opposed by the defendant and scheduled for trial.

Even in the contested cases, the disputes rarely center on fault. According to the judges who hear matrimonial cases (as divorces are euphemistically called), those taken to trial usually involve money, property, support or child custody. Fault is almost never considered in resolving the economic issues of a marital dissolution.

Many lawyers and advocates for women favor retaining fault, since fighting the divorce may be the only leverage the spouse with less money, who is usually the wife, has in securing support, property or custody of children.

SPLITTING UP SAME SEX COUPLES

In the meantime, although same-sex couples cannot marry in this state, it seems they can get divorced. Or, at least, at the end of the relationship, their property may be distributed on an equitable basis – or what a judge finds to be equitable -- just like that of any other married, divorcing couple. A recent decision by another Manhattan judge produced what might be termed a non-marital divorce.

In the case of CY v HC, Yaffa Cheslow and Constance Huttner, both lawyers, had become registered domestic partners and exchanged vows in a religious service. Soon they jointly purchased an Upper West Side townhouse for $3.46 million. They lived as a couple with their three children (two of Huttner’s and one of Cheslow’s) and were, as the judge described it, “in all respects a family.” But, after two years in the family home, the couple separated.

Traditionally, where title to property is held jointly, as it was in this case, there would have been a 50-50 ownership interest and 50-50 split of the proceeds of the sale of the home. While title -- the name on the deed -- no longer controls in divorce, in any other situation a deed listing two names carries a presumption of equal interests. But Huttner argued that there was not an equal investment in the home because Cheslow had contributed only 7 percent of the down payment, closing costs, renovations, mortgage and insurance payments. As the larger contributor, Huttner said that the deed to the jointly held property did not accurately reflect their true, proportionate interests.

The judge could have found that, because the deed reflected a 50-50 interest, the property should be partitioned equally. Instead, the judge likened the case to a divorce. She deducted what each woman had put into the property as far as could be established at trial and divided the remainder in half. In this unusual result, the court concluded that Huttner was not entitled to credit for “any disparities in payments made by the parties to carry and maintain the townhouse after the couple moved in, and prior to separating” -- in other words during the period when they were partners in a family relationship and not mere real estate partners.

As reflected in these cases, it is often easier to form a bond than to dissolve one.

Emily Jane Goodman is a New York State Supreme Court Justice 

Coney Island's Summer of Reckoning


At the seashore then and now: One of world's great beaches

Development is booming along much of New York City's once neglected waterfront. New developments shoot up in Greenport and Williamsburg, as luxury high rises encircle more and more of Manhattan's shore.

But the waterfront is luring developers and residents to the edges of the city as well. Real estate firms have bought up chunks of Coney Island, including the Astroland amusement park. The city has a strategic plan for the Brooklyn neighborhood and plans to announce rezoning of the area within the next several months. With Thor Equities, the new owner of the Astroland property, envisioning luxury condos, indoor water rides and other year round amusements, some Coney Island aficionados wonder whether the area's unique spirit can survive. Isolated attractions – the Cyclone, the Wonder Wheel, the Parachute Jump – will stay on but what will surround them? And what will become of the businesses -- some marginal, some tawdry -- that have staked out territory at New York's southern edge.

Wonder Wheel: A landmark attraction

Beaches on the Edge

See also:

  • Coney Island: Vendors Contemplate the Future
  • The Rockaways: Rescue, Revival or Ruin?
  •  

    Coney Island Yesterday and Today:

    For more information on Coney Island:

    Coney Island Development Corporation: City agency charged with spearheading and implementing planning and economic development for Coney Island.

    Coney Island USA: A non-profit arts organization that promotes Coney Island and some of its traditions.

    Coney Island History Project: A not-for-profit organization that works to increase awareness of Coney Island's legendary and colorful past and highlight appreciation of the Coney Island neighborhood today.

    Rollers Coaster of Coney Island: Coney Island's role in the development of the favorite amusement park ride.

    Coney Island Lost and Found by Charles Denson (Ten Speed Press, 2002): This book by a Coney Island native weaves together memoir with stories of the areas past and personalities.

    Coney Island: The People's Playground by Michael Immerso (Rutgers University Press, 2002): A history of Coney Island from its earliest development as a resort to the Mermaid Parade, with hundreds of photos.

    The Incredibly Bold, Audaciously Cheesy, Jaw-Droppingly Vegasified, Billion-Dollar Glam-Rock Makeover of Coney Island (New York Magazine): What could replace Astroland.

    Currently much remains unclear. Although the city has a plan for the area, it has not yet issued a planned rezoning of the neighborhood's streets. While Thor wants some residential development, the city wants to keep housing – luxury or not – out of that part of Coney Island. The owners of Astroland have sold their land, but they apparently still hope some of the rides can be moved elsewhere. The B&B carousel has been shuttered, the horses and other parts moved for renovation. The carousel will take children in circles again some day – but its final location in Coney Island remains unclear. Underlying all this are concerns about whether anything can lure people to Coney Island in the winter and whether it can support a year round amusement area, to say nothing of hotels and posh apartments.

    The Municipal Art Society recently held a forum on Coney Island and its history in this era of development. Excerpts from the discussion are below. (While the society did not invite a representative of Thor Equities, another developer, Ari Shalam, Taconic Investment Partners, did speak. Taconic has a number of projects in Coney Island but not on the Astroland site.)

    Honky-tonk Fantasy

    By Stuart Pertz

    Coney Island is an extraordinary beach, one of the most extraordinary beaches in the world, in fact. We take it for granted because it's ours. Once a most incredible place, it remains pretty incredible.

    Preceding the 1800s, a number of Indian colonies were around Gravesend Bay. The oysters were the size of dinner plates, and they were packed in crates and sent off to Holland as a delicacy.

    The turn of the century was really the heyday of Coney Island. There were three racetracks, there was Luna Park, Dreamland and any number of smaller amusement areas, and there was the beach and the boardwalk. There were few places in the world that could boast the kind of architecture that Coney Island had. It was a combination of honky-tonk and then the phantasmagoric dreamland.

    There were five railroads and a horse drawn trolley that got people where they were going, plus a ferry that, at peaks times, ran every 20 minutes. Some people even came by car. There were lots of amazing hotels to stay in: big ones, little ones.

    It was more than a place of amusement, it was an attitude. This is apparent in the fact that so many musical scores were written on or about Coney Island.

    And it was also a community. Living nearby were people who did not necessarily work in the amusement park, but people who lived normal lives in Brooklyn in perfectly nice houses: some very suburban, some apartment houses, and some that were not so nice and in need of repair.

    The basis change came about after the fire at Dreamland. That fire and subsequent fires wreaked havoc on an amazing place that had boxing, restaurants and racetracks. They left Coney Island devastated.

    But it is still a great place to swim, a great place to walk, and a great place to bike. It is also a great place with some wonderful opportunities for preservation.

    Stuart Pertz is a former New York City planning commissioner.


    The Plan for Change

    By Lynn Kelly

    Coney Island is an opportunity for something very exciting. You may not have been to Coney Island, but you've heard of Coney Island. I think everyone I have talked to has at least some notion or recollection of the name. Other great assets of Coney Island are its beach, its community, and most importantly, its history. But there are obvious challenges too: disparate ownership, a lot of vacant parcels. There is a seasonality issue. We would love to make Coney Island more year round, but without amusements to bring you there, why would you want to go to Coney Island in the middle of February?

    History will show that in Coney Island, the city made mistakes. Now we have a great opportunity, with everyone united, to change that.

    The first step took place in the previous administration with the implementation and building of Keyspan Park for baseball's minor league Brooklyn Cyclones in 2001. When the Bloomberg administration came in in January of the following year, the first step was to unite the local elected leaders and come up with a vision of how we were to change Coney Island. The Coney Island Development Corporation was formed in 2004 by the mayor, Brooklyn Borough President Marty Markowitz and the local city council member, Dominic Recchia. It has a 13-member board and is charged with spearheading a comprehensive economic development strategy for Coney Island.

    As the president of the Coney Island Development Corporation, one of my first tasks was to work on the strategic plan. The vision for Coney Island, released in 2005, was based on three strategies. - It is important to get year round activity, new entertainment, and retail. - It is important to enhance the amusement district, because, without enhancing the amusement district, we've effectively lost Coney Island, we've lost that brand. - And lastly, Coney Island is in the middle of a vibrant neighborhood of over 50,000 residents, and it is important to provide opportunities to those residents.

    The B&B Carousel: It gets the bras ring -- renovation and a new home

    How will we achieve this? The strategic plan breaks Coney Island into different districts, and in each of these districts we have certain goals that will become a part of the reassignment for Coney Island.

    In order to look forward, you have to know your past. Let's start with the historic aspects of Coney Island and the icons that are there: The Wonder Wheel, the Cyclone the Parachute Jump, the Aquarium, the Shore Theater. All of these are going to anchors for new development in Coney Island. Four of them are landmarks. One – the Parachute Jump -- received a 1.5 million dollar lighting scheme within the past year and went into restoration. This is Coney Island east, the main amusement area, and we really want to see that grow as an amusement park.

    We're proposing new streets because, back in the day, part of the Coney Island experience was the pedestrian experience. You could wander or walk in and around a certain avenue and really enjoy yourself in a way that was pedestrian friendly. Currently the blocks are very large, they're mega-blocks. One approach to the strategic plan is to break off some us those mega-blocks with new streets.

    The existing zoning right now is called C, a very limited zone. It only permits, for the most part, open amusements. We need to give people different experiences when they come to Coney Island -- for example, hotels, music venues, entertainment retail -- and of course, more amusements and rides. So the new zoning would allow activities that could complement an amusement district such as entertainment retail and hotel.

    The Cyclone: Preserving the wooden rollercoaster

    Some might ask, "If you're going to bring in all this retail and activity, who is going to use it?" A huge part of the strategic plan is residential as well. North of Surf Avenue, where there are currently a lot of vacant parcels with a mixture of public and private ownership, we are proposing residential, with ground floor entertainment retail. You need a reason to walk down Stillwell or Surf Avenue, you need something compelling, and retail is an important part of that plan.

    The western end of Coney Island is a transition area and heavily residential. Here again you can ground floor retail. These are parts of the plan that we feel create the critical mass of people within Coney Island.

    We did a lot of outreach in the community when we were first composing the plan and two things came out of that. One was the importance of having a community center in Coney Island and the other ferry service to Coney Island. The city has already designated a developer that is going to build South Brooklyn's first full-service 40,000 square foot YMCA and affordable housing. The city is contributing $5 million to that project. The city is also going to request a proposal to study ferry service.

    This is a plan that has been presented to the public and will continue to be presented to the public. The mayor has already committed over $85 million to a variety of capital projects in the plan: public housing, the B&B carousel, new streetscape work.

    We're here, we're active in Coney Island, we're anxious to hear your. But let me leave you with one thing: Tell every person you know that this is absolutely not the last summer for Coney Island.

    Lynn Kelly is president of the Coney Island Development Corporation.


    Opportunity Around a Great Building

    By Ari Shalam

    In 2004, we looked around Coney Island and saw what it could be. We saw the new Stillwell Avenue subway station. We saw the Cyclones stadium, which was a great public investment although not necessarily planned the way we would have done it. We could see the Parachute Jump go into motion and the aquarium. We saw a lot of public investment and initiative.

    We saw the wonderful history of Coney Island. We saw the beaches. A lot of money had gone into rebuilding those beaches and the Boardwalk. And yet just behind the beaches, there's all this land lying fallow. You have to ask yourself why. Some of that land was orphaned – cut off from other properties. In particular, the stadium development took land that might have been used for new amusements and cut it off from the amusements already there.

    Luna Park: Architectural fantasy destroyed by fire

    The last thing we saw was a good transportation infrastructure. If New York City is going to accommodate the growth that it needs and the housing formation that the mayor has called, it has to site residential opportunities close to public transportation. Whether it is vehicular transportation or subway transportation, that is where the homes need to be. We need to have sustainable development in the city, and not develop things far away, where people have to drive.

    Our first acquisition was in the spring of 2005. The strategic plan came out just around that time. Everything that we are thinking about doing is fixed with that plan. We are going to do what we can to put it together and really bring about the reality of change in Coney Island, rather than some of the failed plans that have come and gone over the years.

    Now to something that is near and dear to my heart and to many of the people here: the Childs building. The Childs building is really one of the remarkable landmark structures of Coney Island. In the development community, you hear a lot of people say, "Gee, that shouldn't be a landmark." But it is. With the Childs building, there are no doubts. It is a wonderful building.

    There are a couple things about it that are particularly important. It happens to be at a place on the Boardwalk where there is a natural bend. Trying to draw people from the narrow, reduced footprint of the amusement area, around the stadium and into some of the more transitional areas, people will look down the boardwalk and see the Childs building. We see that as a kind of gateway piece.

    The Childs building has a great history. It was once part of the Childs restaurant chain. Since it closed in 1947, various people have owned it. The person we bought it from was a bookseller. It was an extraordinarily complicated transaction. The person did not really want to do anything with it. Many organizations have tried to talk to this owner. We were successful in August of 2006, finally consummating a long-term ground lease with the option to buy.

    We see it as a as a marquee food operation with catering and opportunities for people to come in and not only eat on kind of a passer-by basis, but actually have reservations and sit down. If you look over to Brighton Beach side, you see some restaurants that come out on the Boardwalk. As you walk by, they really pull you in.

    We have proposed restoring the fascia of the building. There are some beautiful medallions on there and great detail work. The interior of the building was a mess. It was dark and dingy. We have cleaned it up made it safer, installed security.

    We are trying to get in a position where it could be used very soon. Because we don't know how the ultimate rezoning and development will occur on Coney Island, we have to be careful of what money we spend now. But we are working on a way to open up the historic parts on a temporary basis this summer or at least open up the front portions of the building for that.

    Childs Building: Restoring a onetime jewel of the Boardwalk

    One of the ideas we kicked around is to try to create access to a second floor, or the roof, for a catering facility. Wouldn't it be great to have a wedding or an event and come out to the roof and look at the ocean? If you look at some of the old pictures, you can see that there was almost a beer garden up there. We're going to try and restore that. But the plan for that building really has to be taken in context with everything that's going to happen around it, not only the plans for the parachute jump, but also for Steeplechase Park which is a block or two away. We have to see what happens with the rest of Coney Island.

    Ari Shalam, Taconic Investment Partners

     

    New Bills: Rights in Restaurants, Banning Markers


    At each of the City Council's stated meetings, council members introduce bills. Most of them never become laws, but some do. (For the process by which bills become laws, click here). As a regular feature, Gotham Gazette discusses some of the legislation proposed at each meeting.

    Responsible Restaurants

    Amid press reports about underpaid and overworked employees in the city’s restaurants, Councilmembers Eric Gioia and Rosie Mendez introduced the Restaurant Responsibility Act.

    The measure, backed by the Brennan Center Strategic Fund and the Restaurant Opportunities Center of New York, would require establishments to comply with labor laws in order to have their operating permits renewed. By enforcing minimum wage and other labor laws, Bill 569 would combat the widespread cost-cutting measures that many restaurants employ at the expense of their staff.

    The restaurant industry is the largest private sector employer in the state, according to Carolyn D. Richmond, a lawyer for Heartland Brewery. And a study by the Restaurant Opportunities Center found that the New York City restaurant industry is expected to account for $13 billion in annual city revenue by 2010.

    Counter to this growing wealth, however, is the often bleak reality for the industry’s thousands of workers. Violations of labor laws are widespread in New York City’s restaurants with 59 percent of employees reporting violations of laws governing overtime wages, 52 percent reporting a lack of workplace safety training, and 38 percent reported being burned on the job. Additionally, 73 percent of restaurant workers said they had no health coverage.

    A number of lawsuits accuse restaurants of stealing tips from workers and cheating on wages. State Labor Commissioner Patricia Smith said this is because actors and immigrants who normally do not speak up for their rights have become “emboldened” and are speaking up.

    Delivery staff are among the restaurant workers leading the trend. For over two months, they have been protesting outside of the Saigon Grill because of firings and what they say are wages as low as $1.60 per hour. Earlier this month students organized a sit-in at the restaurant, and then joined delivery workers on the picket line.

    The Restaurant Responsibility Act would elevate the importance of labor laws by requiring disclosure of violations and would create opportunities for public comment on the restaurants’ practices as part of the permit process. The act would also add make the violation information available online, as the city currently does with health violations, and allow the city to conduct hearings on permit renewals.

    The government currently has the power to go after restaurants in violation of labor laws, but this act would established a clear mechanism, standards and penalties, according to Eric Lane of the Brennan Center.

    Graffiti Wars (Continued)

    Councilmember Peter Vallone Jr. introduced legislation to set new limits on materials used to make graffiti, such as aerosol paint, thick permanent markers and etching acid. Aimed at individuals under 25 years old, the law would require written permission for those traveling with these materials for work or school, or who are permitted to use the paints and markers on a particular surface or structure.

    Vallone won passage of similar anti-graffiti legislation targeting 18 to 20 year olds last year, but it was struck down by a federal court on first amendment grounds. Mark Ecko, a designer and backer of the lawsuit, pressured Vallone not to challenge the ruling. Vallone dropped the case but instead introduced this measure. Ecko’s lawyer, Daniel Perez, said, however, that the new bill does not address the issues raised by the suit. “I'm almost speechless that he would even propose this to the council, and I hope he tells the council before he gets them to vote for it that this bill has already been struck down as unconstitutional," Perez told the Sun.

    A buzz on the anti-graffiti bills has continued in classrooms where graffiti work is studied and conceptualized. Vallone said of the professor and students of a Geek Graffiti class at Parsons School of Design, “He’ll be giving his students As, but we’ll be giving them a misdemeanors.”

    Vallone has become a prominent anti-graffiti figure, and was featured in Bomb It, a movie about graffiti artists. Vallone opted not to attend the recent Tribeca Film Festival screening of the film citing that fact that he would be an unpopular guest.

    Siting Schools

    Over the next five years, the Department of Education plans to lease 30 existing buildings to open new schools. In light of this, Councilmember Robert Jackson introduced Resolution 836 calling upon the state legislature to amend the Public Authorities law so that the buildings leased will be subject to the same community, political and environmental review processes that apply to new school construction.

    The safety of school sites came before the City Council earlier this year when it voted on a proposal to build four schools on a toxic dump. Though members of the council and the public voiced concerns, the proposal passed unanimously after the Department of Education agreed to a new plan for cleaning up the area and to make the school siting process more transparent.

    Arts Funding

    In another resolution on education, Councilmembers Jackson, Oliver Koppell and Dominic Recchia introduced Resolution 837 calling for the Department of Education to maintain a minimum level of arts funding for New York City’s public schools.

    Mayor Rudolph Giuliani began Project ARTS (Arts Restoration to the Schools) in 1997 to fund arts education programs. But, according to the resolution, for the past few years, principals have been allowed to spend the arts funding on other projects, thus reducing the amount of money going to arts education. This would recommend that the education department set a baseline of arts funding to ensure that the arts dollars are spent as intended.

    Litter

    With homeowners grumbling about litter tickets, Councilmember Vincent Gentile introduced bill 568, which would change the city’s rules about litter around residential buildings.. Under the law, tickets would be issued when someone complains to 311 or another agency rather than solely at the discretion of the sanitation agents.

    According to the Gentile’s deputy chief of staff, Joe Mancino, the bill was inspired by the increasing number of “dirty area tickets” issued by the Department of Sanitation, often for reasons unclear to the property owner. This proposal and another one to be introduced at the next City Council meeting are intended to clarify the process. A related bill to reduce waste from unwanted circulars and menus also will be put before the council in the coming weeks.

    Unsafe Guns

    Councilmember Oliver Koppell introduced bill 572 to prohibit the sale and possession of unsafe, low quality guns, commonly referred to as “Saturday Night Specials.” These guns are cheap and easy to conceal, but because of their construction they are especially dangerous to gun owners and the public. And they are frequently used in crimes, according to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. The proposal would create a Pistol and Revolver Advisory Committee to advise the police commissioner on which guns violate the police department’s standards. Violation of the law would qualify as a misdemeanor.

    Notifying Tenants

    Councilmember Jessica Lappin introduced bill 573 to require building owners found to have unsafe conditions on the exterior walls to notify tenants immediately.

    Transportation Studies

    Councilmembers Vincent Gentile and John Liu introduced a bill that would require the Department of Transportation to conduct studies of traffic accidents, determine the causes of observed patterns, and make recommendations.

    Birth Certificates

    Councilmember Isabel Palma introduced bill 574 to allow prisoners to receive a birth certificate copy without a fee upon their release.

    Commuter Tax

    Councilmember Nelson introduced Resolution 841 —a perpetual dream for the reinstatement of the commuter tax.

     



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