Protective Order Voids Professional Contract, Panel Says

, New York Law Journal

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Hilary Kolodin, known professionally as Hilary Kole.
Hilary Kolodin, known professionally as Hilary Kole.

"It is of no moment that Jayarvee could hypothetically perform the contracts absent Valenti's involvement; to do so would require a sort of firewall, the very establishment of which would necessitate (direct or indirect) communication between Valenti and plaintiff," he wrote.

Valenti and Jayarvee argued that Kolodin could not benefit from the doctrine of impossibility because she herself had helped create the conditions that made performance impossible, by bringing the Family Court proceeding. They pointed to the Court of Appeals' 1975 decision in Cushman & Wakefield v. Dollar Land Corp., 36 NY2d 490, 496, which held that dissenting shareholders who obtained an injunction against the sale of a corporation, and then won control of the corporation, could not declare that the injunction made the sale contract impossible because they brought about the injunction themselves and could dissolve it.

Acosta wrote that Cushman was not applicable since Kolodin didn't bring about the stipulation herself; Valenti agreed to it. Furthermore, the judge noted, though Kolodin did obtain the order of protection unilaterally, she was "compelled to do so by the alleged domestic abuse of her partner," a situation that had not been considered in any prior cases.

Moreover, Acosta said, Valenti himself had said earlier in the case that performance was impossible because of the order of protection, and "cannot create an issue of fact by contradicting his prior sworn statement."

"We're delighted that it was unanimously affirmed, and Hilary is delighted to move forward with her career," said Lawrence Garbuz, a partner at Garbuz and Lewis, who represents Kolodin along with his partner Adina Lewis and Michael Andrews, of counsel to the firm.

Andrea Bierstein, a partner at Hanly Conroy Bierstein Sheridan Fisher & Hayes, who represents Valenti along with her partners Paul Hanly and Jayne Conroy, said in an email that they were disappointed with the decision.

Bierstein said in the email that the decision "ignores: (1) the clear holding of the New York Court of Appeals in [Cushman] that the defense of impossibility is unavailable if the party seeking it plays any role in bringing about the impossibility; (2) that the stipulation at issue did not arise out of thin air, but was itself the result of the injunction that plaintiff obtained; and (3) that the injunction itself was obtained ex parte, and plaintiff never had to substantiate her allegations of domestic abuse (referenced by the Court)."

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