Exhibit,Appendix: Ralph P Romano v. Ina Romano, Eric Goldfine Trustee Of Eric Goldfine Self employed retirement plan and trust

On March 01, 2021 a Exhibit,Appendix was filed involving a dispute between Ralph P Romano, and Eric Goldfine Trustee Of Eric Goldfine Self Employed Retirement Plan And Trust, Ina Romano, for Real Property - Other (RPAPL Article 15) in the District Court of Nassau County.

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EXHIBIT E
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SUPREME COURT : STATE OF NEW YORK
COUNTY OF NASSAU

PRESENT : HON. JOSEPH H. LORINTZ,
Justice
--------------------------------- -----------X
RALPH P. ROMANO, IAS/Trial Part 26

Plaintiff, Index No.: 202188/16
Mot. Seq.: 06
-against- Dated: 2019
May 13,

INA ROMANO, DECISION & ORDER

Defendant.
....._______....... ... ..
.
-------------X
The following papers read on thismotion:

Notice of Motion, Affirmation and Exhibits.................................x
Affidavit in Support and Exhibits.............................................x
Affidavit in Opposition................,,.......................................x

Upon the foregoing papers, the Defendant moves by Notice of Motion seeking an Order:

1. To reargue and renew, in opposition of, the oral application of the Defendant to

preclude the Plaintiff from receiving equitable distribution of the Residence or the

Florida Condo, upon the ground that the Court overlooked or misapprehended matters
of fact and law in determining the Defendant's motion and other facts that should have

been previously brought to light by Plaintiff during arguments of this matter, were not;

2. The Court, in itsDecision of December 28, 2018, sua sponte, ruled upon a m.otion not
before it;

3. In the event that such leave is granted that such reargument and rcñcwal then and there

proceed; and

4. Staying the pending litigation until such time that this Court renders a determination of

this within application for such other and further relief as may be just, proper and

equitable.

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BACKGROUND

The Plaintiff and the Defendant (the "parties") were married on August 29, 1998.

There is one unemancipated child born of the marriage. At the time of the marriage, the

Plaintiff was a principal of Romano Enterprises of New York, Inc. ("Romano Enterprises"), a

bridge painting business and E-Z Platform, Inc. ("E-Z Platform"), a business that erected

suspension platforms to facilitate bridge painting. The Plaintiff purchased a Town House in

1989 for which he obtained a mortgage in the amount of $300,000.00. The parties lived in the

Town House from l 997 until the Plaintiff's incarceration.

The Plaintiff was arrested in May of 2000 and charged with Second Degree Murder.

Upon his release on ball, the Plaintiff transferred his business interests to his father. He

testified that Romano Enterprises and E-Z Platform (collectively the "businesses") relied on

government contracts and, since he was a principal of both companies, his indictment

prevented the businesses from bidding on government jobs. Shortly after the businesses were

conveyed, the Plaintiff's father unexpectedly died, and the Plaintiff's uncle was named the

executor of his estate. The Plaintiff requested that the businesses be transferred back to him,

but his uncle refused, claiming that they were the father's property and should be distributed

pursuant to his will. The Plaintiff commenced litigation against the estate seeking, in part, that

the businesses be transferred back to him. The dispute was resolved in or about June of 2003,

when the Plaintiff agreed to accept title of an industrial property located in College Point, New

York, and commercial painting equipment.

The Plaintiff's criminal trial began in or about September of 2001 and jury selection

was underway during the terrorist attacks of September I1, 2001. Consequently, the Judge

declared a mistrial and a new trial began later that month. The Plaintiff was convicted of

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Second-Degree Murder in November of 200 l. Prior to sentenced, the Plaintiff moved
being

for an order pursuant to CPL §330.30(2) to set aside the jury verdict based on juror misconduct.

The motion was granted, and the Plaintiff was released on bail pending a new trial.

In or about 2001, the Plaintiff transferred titleof the Town House to the Defendant and

the Defendant secured a mortgage, which she used to satisfy the remainder of the original

mortgage. In May of 2005, following the conclusion of a jury trial,the Plaintiff was convicted

of Second-Degree Murder and sentenced to a term of 18 years to life in prison.

The Plaintiff executed a Power of Attorney, granting the Defendant the authority to

effectuate the sale of the industrial property he received from his father's estate. The property

was sold in July 2005 for $1,300,000.00 plus 750 yards of concrete. The Plaintiff testified that

he did not recall ifhe gave the Defendant instructions as to the use of the proceeds, but that he

expected her to safeguard them, since he provided support for her and their child by other

means.

In 2005, while incarcerated, the Plaintiff retained a broker to sellthe painting equipment

that he received from his father's estate. When asked about its value, the Plaintiff testified

that, in 2005, the equipment was worth approximately $1,000,000.00. The purchaser paid for

the equipment by checks made out to the Defendant. The Plaintiff testified that this was done

convenience,"
"as a matter of since the Plaintiff was incarcerated. Copies of the checks were

submitted as Plaintiff's Exhibit 1I and total approximately $250,000.00. Some of the

payments were issued to Certified Consulting & Design, Inc. ("Certified Consulting"), a

business entity formed by the Defendant to receive commissions for consulting work

performed by the Plaintiff. When asked why some of the payments for the painting equipment

were made payable to Certified Consulting, the Plaintiff testified that he didn't know. He

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further testified that he instructed the Defendant to safeguard the money, so he could use itto

start a new business when he was released from prison but that she used the funds to maintain

her lifestyle.

In addition to the industrial property and painting equipment, the Plaintiff testified that

he inherited other assets from his father, including a payout from his lifeinsurance policy, an

unspecified amount of cash, proceeds from the sale of a boat and between $250,000.00 and

$350,000.00 from his pension, which the Defendant used to pay the family's living expenses

and legal fees. A portion of the money was deposited into the Defendant's existing bank

account.

2007.1 parties'
The Defendant renovated the Town House in She and the child

continued to live in the Town House until 2011, when the Defendant purchased a house located

in Center Island, New York (the "Residence"). The Plaintiff testified that he participated in

every step of the purchasing process, including price negotiations. He further testified that the

down payment used to purchase the Residence was paid from his inheritance and the rest was

financed. The Plaintiff later testified that the Defendant, without his knowledge, borrowed

$100,000.00 from her brother to purchase the Residence. The Town House was sold in 2012

for $480,000.00. The Plaintiff testified that he was involved with the sale to the extent that he

approved the sale price. He further testified that the sale netted approximately $455,000.00,

of which $100,000.00 was used to repay the Defendant's brother.

The Plaintiff testified that in or about 2006, the Defendant asked him for permission

for her to cosign a mortgage for her brother to purchase a property in Florida. He further

1 In his "beautification."
testimony,the referred
Plaintiff to the renovation as a

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parties'
testified that in 2016, after the commencement of the divorce action, he learned that

the Defendant and her sister in law were co-title owners of a condominium in Florida. The

Plaintiff is currently incarcerated at the Fishkill Correctional Facility where he is serving a

sentence of 18 years to life. He is eligible for parole in January of 2021.

The Plaintiff commenced an action for divorce on or about May 9, 2016 and the trial

commenced on November 7, 2018. The Plaintiff's counsel called only one witness, the

Plaintiff, before resting on December 5, 2018. Thereupon, the Defendant, by her counsel,

made an oral application for a ruling that the Plaintiff had effectively waived his interest in the

Florida Condominium and the Residence by failing to present competent evidence of their

value. By a Decision and Order dated December 28, 2018 (the "Decision"), this Court granted

the Defendant's application to the extent that it precluded the Plaintiff from seeking a

distributive award of either property. Following the issuance of the Decision, the Defendant

rested her case without presenting any evidence. At the Court's direction, both parties

submitted post trial memoranda in or about March 2019. Thereafter, the Plaintiff filed the

instantmotion to renew and reargue the Decision. The application was fully submitted on May

13, 2019.

DISCUSSION

CPLR §2214(a) requires that the relief sought, and the grounds thereupon, be stated in

the Notice of Motion. As a preliminary matter, some of the relief sought by the Plaintiff in his

Notice of Motion is unclear. The firstbranch of the Plaintiff's application seeks an Order

To reargue and renew, in opposition of, the oral application of the Defendant to
preclude the Plaintiff from receiving equitable distribution of the Residence or

the Florida Condo, upon the ground that the Court overlooked or
misapprehended matters of fact and law in determining the Defendant's motion
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and other facts that should have been previously brought to light by Plaintiff

during arguments of this matter, which were not...

The second branch of the Plaintiff's application seeks an Order "The Court, in itsDecision of

December 28, 2018, sua sponte ruled upon a motion not before it", Though unclear, this

appears to be an allegation offered in support of his motion to reargue. The third branch of his

application seeks an Order "In the event that such leave is granted that such re-argument and

renewal then and there proceed". CPLR §2221(f) provides, in part, that "[i]f a motion for

leave to reargue or leave to renew is granted, the court may adhere to the determination on the

determination."
original motion or may alter that Thus, itis unclear to this Court how the third

branch of the Plaintiff's application differs from the first two. However, this Court will

endeavor to interpret the relief sought by the Plaintiff, just as it did in deciding the Defendant's

oral motion.

Reargument

The Plaintiff seeks leave to reargue the Defendant's oral application for an Order

precluding the Defendant flom seeking a distributive award with respect to the Residence and

the Florida condo. He argues that, in granting the Defendant's application, the Court

overlooked facts in the record, improperly ruled on a motion not before it and misapplied

caselaw.

It iswell settled that "[m]otions for reargument are addressed to the sound discretion

of the trial court which decided the prior motion and may be granted upon a showing that the

court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier

decision."
Viola v. City of New York, 13 A.D.3d 439 (2nd Dept. 2004); Carrillo v.PM Realty

Group, A.D.3d 611 (2nd Dept. 2005); McNeil v. Dixon, 9 A.D.3d 481 (2nd Dept. 2004). A

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motion to reargue is notto afford an unsuccessful party with additional opportunities to reargue

issues previously decided, or to set forth arguments which differ in substance from those

originally articulated. McGill v. Goldman, 261 A.D.2d 593 (2nd Dept. 1999); Woody's

Lumbar Co., Inc. v. Jayram Realty Corp., 30 A.D.3d 590 (2nd Dept. 2006); Gellert & Rodner

v. Gem Community Mgt., 20 A.D.3d 388 (2nd Dept, 2005),

Here, the Plaintiff argues that the Decision was "fraught with errors and oversights,

so..."
some significant and others less The alleged errors and oversights are listed in Paragraph

"a" "ll"
22, subparagraphs through of the Affirmation attached to the Plaintiff's moving papers.

Many of the Plaintiff's allegations are demonstrably false. For example, the Plaintiff alleges

parties'
that there is no evidence in the record to indicate whether the child is emancipated.

On the contrary, multiple documents in evidence, the Conference Order
including Preliminary

and the parties Statements of Proposed Disposition show that the child is 19 years old and the

Plaintiff testified to the same. It is the fhndamental public policy in the State of New York

that parents are responsible for their children's support until the age of 21. Matter v
of Gansky

Gansky, 103 A,D,3d 894 (2nd Dept. 2013); See DRL § 240; Family Ct. Act. §413. Thus,

absent a court order to the contrary, there is a presumption that children under the age of 21

are unemancipated. Here, the record is devoid of court orders or evidence indic.nting that the

child is or should be emancipated.

The Plaintiff further alleges that the Court erred in stating that his dispute against his

father's estate, concerning the Plaintiff's business interests, was resolved in or about June 2003

when the Plaintiff agreed to accept real property and commercial painting equipment. In fact,

the Plaintiff testified that the 2003 Settlement Agreement between him and his father's estate

resolved claims he had concerning his uncle's handling of the administration of the estate and

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his "share in the estate because, as I had explained earlier, I transferred what was mine to my

claim."
father and now I wasn't getting it back, and that was my (Tr. 11/9/19 at Page 24). He

further testified "[i]n lieu of monies owed to me, I was given the College Point Industrial

inheritance."
Property and the equipment as an Id.

The Plaintiff alleges that the Court erred in stating that he testified that he did not recall

if he instructed the Defendant as to the use of the proceeds from the sale of the industrial

equipment. Nevertheless, the Plaintiff testified "I don't know if Ispecifically told her what to

safeguarded."
do with the money, but I expected itto be there and be (Tr. 11/26/19 Pages

14,l 5).

In addition to the foregoing demonstrably false allegations, the Plaintiff argues

semantics. For example, the Plaintiff alleges that the Court erred in describing alterations the

Defendant made to the Townhouse in 2007 as a renovation instead of a beautification.

Similarly, the Plaintiff alleges that the Court erred in stating that he executed a Power of

Attorney ("POA") granting the Defendant the authority to sell the industrial property. Instead,

he argues that the PGA was executed to allow the Defendant to attend the closing in his stead.

Either way, the Defendant was given a power of attorney to effectuate the sale. In these and

other examples, the errors alleged by the Plaintiff boil down to word choice and are irrelevant

to the rulings contained in the Decision,

The Plaintiff further argues that the Court erred by making certain ministerial errors.

For example, he argues that the Decision states that titleof the Townhouse was transferred to

the Defendant in 2002, though itwas actually transferred in 2001. Though true, this was likely

a typographical error and did not impact the holding set forth the Decision. He further argues

that the Court erred in stating that the buyer of the industrial issued checks payable
property

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to the Defendant when, in fact, it was the buyer of industrial equipment who issued checks

payable to her. Foremost, checks related to the sale of the property, including refunded counsel

fees, were made payable to the Defendant. The relevant point is that the Plaintiff transferred

assets to the Defendant and all checks payable to the Plaintiff were signed over to the

Defendant and deposited in accounts titled solely in her name.

The Plaintiff further argues that the Court erred in stating that the Residence was marital

property. He argues that only the appreciation of the value ofthe Residence is marital property.

This assertion would be true if the Residence was the Plaintiff's separate property. For the

reasons set forth in the Decision and discussed further herein, which include the Plaintiff

transferring property to the Defendant, the comingling of marital property with separate

property, the presumption that property acquired during the marriage is marital property and

the Plaintiff's failure to trace the funds used to purchase the Residence to his separate property,

thisCourt found that the Residence and Florida Condo were, at best, marital property.

Strangely, the Plaintiff's counsel makes several assertions that contradict their client's

testimony and their Memorandum of Law dated December 5, 2018. For example, in the

Affirmation attached to the Plaintiff's Notice of Motion, his counsel argues that the

"Defendant's Statement of Net Worth (Plaintiff's Ex. 28) does not list the value of the

Residence, nor ofthe Florida Condo, Defendant's Statement ofNet Worth liststwo properties:

a single family home, no address or community location, acquired by the Defendant on August

$200,000.00."
27, 2005, valued at $1,200,000.00 and a condominium valued at Upon review

of the Defendant's Statement of Net Worth, although the acquisition dates appear to be

incorrect, the properties listed are clearly the Residence and the Florida Condo. The addresses

of both properties are stated on Page 17 of the Defendant's Statement of Net Worth under the

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"Liabilities."
heading The Plaintiff testified and submitted evidence to establish that the

Residence was purchased for $825,000.00 and secured by a mortgage of approximately

$500,000.00, which matches the description of the properties listed in the Defendant's

Statement of Net Worth. With respect to the Florida Condo, the Plaintifftestitled that both the

Defendant and Irena Patarkatsi appear on the title. The condo listed on the Defendant's

Statement of Net Worth states the same. Moreover, the Plaintiff testified that the Florida

Condo appeared on the Defendant's Statement of Net Worth (Tr. 11/27/2017 at Page 8) and

his counsel stated the same on Page 2 of his Memorandum of Law dated December 5, 2018.

Thus, the Plaintiff's claim that the Defendant's Statement of Net Worth listsother properties

is demonstrably false and contradicts the Plaintiff's testi.mony and his attorney's

representations.

The Plaintiff further alleges that this Court misapprehended facts and law in

determining that the Residence is marital property. He argues that he sufficiently traced the

funds used to purchase the Residence to his separate property and, even ifhe did not, that there

is nowhere else the funds could have come from. This Court disagrees. The Plaintiff testified

that he earned income during the marriage before his incarceration and that the Defendant

worked thereafter. He further testified that Certified Consulting was paid $762,000.00 for

work he performed during the marriage. (Tr. 11/27/18 at Page 13). Those sums are marital

property that could have been used to purchase the Residence. Moreover, the Pf aintiff

provided only a fraction of the account statements that would have been produced over a 17

year marriage. The records are incomplete and do not, by clear and convincing evidence, trace

the funds used to purchase the Residence to the Plaintiff's separate property. Furthermore,

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even within the limited records provided, there is evidence of comingling marital property with

property the Plaintiff claims was separate.

Even ifthe Plaintiff had traced the money used to purchase the Residence to his separate

property, which he did not, he transferred his property, including the townhouse and financial

accounts, to the Defendant, thereby evincing his intent to transmute that property to marital

property. Geisel v. Geisel, 241 A.D.2d 442 (2nd Dept. 1992). The burden to rebut this

presumption falls on the Plaintiff. Cassara v. Cassara, 1 A.D.3d 817 (3rd Dept. 2003). The

Plaintiff testified that he was not permitted to own property while he was in prison, though this

claim is belied by a directive from the New York State Department of Corrections, which

provides that inmates cannot keep existing checking accounts or open new accounts but may

keep other pre-existing assets. (Plaintiff's Exhibit 35). Even if the Plaintiff misunderstood the

parties'
directive, at the time the property was transferred to the Defendant, the Prenuptial

Agreement was stillin effect. Crucially, Page 4, Paragraph 4 of the Agreement titled Future

Property provides that

All the property, real perschal and mixed (including business interests, profit

sharing and pension plans) which each party hereafter acquire in his or her
may
possession shall be and continue to remain the sole and separate property of that

person, together with all future appreciation, increases and other changes in

value of that property and irrespective of the contributions (if any) which either

party might have made of may hereafter make to said property or to the

marriage, directly or indirectly. Notwithstanding the foregoing, any property
which is a gift from one party to the other shall remain the sole and separate

property of the donee of the gift; and all wedding presents given to both parties

shall be deemed jointly owned by the parties wherein ach shall hold an

undivided one (1/2) half interest.

Thus, if the parties had divorced before the expiration of the Prenuptial Agreement, then the

property transferred to the Defendant could have been considered a gift or acquisition and

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become her separate property. Though the Agrcement has since expired, itsexistence at the

time of the transfers speaks to the Plaintiff's intent.

Prior to transferring property to the Defendant, the Plaintiff transferred certain business

interests to his father, so his company could continue to bid for public contracts. Shortly after

the businesses were conveyed, the Plaintiff's father died, and the Plaintiff's uncle was named

the executor of his estate. The Plaintiff requested that the businesses be transferred back to

him, but his uncle refused, claiming that they were the father's property and should be

distributed pursuant to his will. The Plaintiff commenced litigation against the estate seeking,

in part, to reciaim his businesses. The Plaintiff claims that, during the of this
pendency

litigation, he entered into a similar arrangement with the Defendant without a written

agreenient to protect his separate property interests.

The Plaintiff presents as intelligent and articulate, and displayed business savvy during

his testimony. His decision to enter into a Prenuptial Agreement proves that he knew how to

parties'
preserve his separate property interests during the marriage. the
Considering

foregoing, the Plaintiff's testimony that he did not intend to transmute his separate property by

transferring it tothe Defendant, absent a written agreement to preserve his separate property

interest, is not credible. Moreover, the Plaintiff testified that he did not believe that he would

be convicted and did not plan for his incarceration and, therefore, his claimed belief that he

could not own property while he was incarcerated isnot a plausible explanation for his failure

to reclaim titleto the Townhouse when his first guilty verdict was overturned in or about 2003.

Even if he .intended to retain the Townhouse as his separate property in 2001, the Plaintiff

testified that he worked closely with the Defendant to seli the Townhouse and to use the

proceeds to purchase and renovate the Residence, which was titled in the Defendant's
solely

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name. Thus, the Plaintiff again evinced his intent to give the Defendant an ownership interest

in the Residence, Furthermore, even if the Plaintiff met his burden of proving that the

Townhouse and financial accounts titled in the Defendant's name were his separate property,

which he did not, the proceeds from the sale ofthe Townhouse were commingled with marital

assets. The Decision provides the following examples.

... the Plaintiff testified that Certified Consulting was created to allow the
Defendant to collect commissions earned by the Plaintiff. Since those
commissions were earned during the marriage, they are marital property. The
Plaintiff further testified that commissions totaling approximately $700,000.00
were deposited into Certified Consulting's bank account. A portion of the
proceeds from the sale of the painting equipment, which the Plaintiff claims is
his separate property, was deposited into the same account. On at least one

occasion, the Defendant transferred $15,000.00 from Certified Consulting's
account to the account from which the down payment for the Residence was
paid (the "Capital One Account") and at least one transfer of $7,000.00 was
made from the account where the proceeds from the sale of the industrial

property were deposited to the Capital One Account. (See Plaintiff's Exhibits 8
and 19). Moreover, for the reasons set forth below, the proceeds from the sale
of the Town House are marital property and were also deposited into the Capital
One Account.

The Plaintiff argues that the Defendant commingled assets without his knowledge. However,

he testified that he gave the Defendant detailed instructions concerning their finances and

spoke to her multiple times each day to monitor financial activity.

The financial records provided by the Plaintiff are incomplete and do not, on theirown,

prove that the funds used to purchase the Residence were the Plaintiff's separate property.

They also do not show that he intended to retain his separate property interests when he

transferred property to the Defendant. To determine the same, this Court considered the

incomplete records in evidence in conjunction with the Plaintiff's testimony.

In evaluating the credibility ofthe Plaintiff's testimony, this Court is guided by the well

settled maxim fcdsus in uno falsus in omnibus, which permits the Court to discredit or

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disbelieve all a witness's testimony, ifsome ofit is demonstrably false. Washington Mut. Bank

v. Holt, 113 A.D.3d 755 (2nd Dept. 2014) citing Dipalma v State of New York, 90 A.D.3d (4th

Dept. 2011). Here, the Plaintiff's testimony was inconsistent and contradicted affidavits filed

in this and prior court proceedings.

For example, the Plaintiff testified that he was not involved in any business after 2001

of which he was an owner, shareholder, manager or employee. (Tr. 11/9/18 at Pages 16, 17).

However, he testified that he invested $200,000.00 in a p.roperty located on Norman Avenue

in 2005 (Id at Page 52), and, in 2014, negotiated an agreement with the individual who

purchased the College Point Industrial Property (Tr. I 1/30/18 at Page 45). The Plaintiff further

testified that, while incarcerated, he directed the Defendant's day trading activity, negotiated

deals, drafted a contract and gave the Defendant detailed instructions concerning itsexecution.

He further testified that "Certified Consulting and Design is a company I had Ina open to

prison."
receive monies that I earned prior to going to (Tr. 11/9/18 at Page 43).

When asked if the Plaintiff was allowed to maintain bank accounts while incarcerated,

"no"
the Plaintiff answered (Tr. 11/27/18 at Page 44). He testified that "New York State has a

directive in place that states that no inmate in the custody of New York State or a prisoner can

maintain a bank account, a trust account, own and give a list of reasons why
anything they

story."
which stem from security and things of that (Id at Page 45). Two days later, when

to."
confronted with his own statements, the Plaintiff stated, "That's not what I testified (Tr.

l l/29/18 at page 49).

The Plaintiff testified that his former wife, Deborah, never brought a support

proceeding against him in Nassau County Family Court and that he never filled out a financial

form in that proceeding. (Tr. 11/30/18 at page 101). Thereafter, the Plaintiff authenticated a

Case Info

Judge

Denise Sher Track Judge’s New Case

Case No.

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Document Filed Date

April 08, 2021

Case Filing Date

March 01, 2021

County

Parties

DEL VECCHIO, STEVEN M. Attorney for the Defendant
Eric Goldfine TRUSTEE OF Eric Goldfine Self employed retirement plan and trust Defendant
Ina Romano Defendant
Ralph P Romano Plaintiff
SASSONE, THOMAS Attorney for the Plaintiff
Ugell, Scott B Attorney for the Plaintiff
WEBER, JARET STEFFEN Attorney for the Defendant
STEVEN MILLER Attorney
STEVEN MONROE Attorney
IAN STEINBERG Attorney
STEVEN DIXON Attorney

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Exhibit,Appendix: Ralph P Romano v. Ina Romano, Eric Goldfine Trustee Of Eric Goldfine Self employed retirement plan and trust

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