New York Law Journal

MINEOLA — After admitting he owed his son, a child actor, more than $150,000, a Long Island used-car salesman has so stymied efforts to collect that money that the son's court-appointed guardian has asked a Nassau judge to hold the father in contempt. A hearing is scheduled for Sept. 8 before Supreme Court Justice John P. Dunne. 

Actor Joshua LaBove, now 18, appeared on Sesame Street and Burger King commercials, and did voice-overs for cartoons, including the USA Network's "Magic School Bus" series. At his peak, the child actor was earning more than $110,000 a year, said his property law guardian, Charles M. Mirotznik. But instead of saving that money, Joshua's now-divorced parents commingled his income with their own and spent it. 

With Joshua's mother, Carrie, on disability — she is a cancer survivor who lost an arm to the disease — Mr. Mirotznik is pursuing Joshua's father, Joseph LaBove, trying to recover some of the money the actor's father once confessed to owing his son. With interest, the sum has ballooned to more than $240,000, said Mr. Mirotznik, who added that what exactly happened to the money "is a good question." 

Mr. Mirotznik, a Manhattan solo practitioner, has been chasing Joseph LaBove through more than six years of litigation. Because of his guardianship status, the attorney is the named plaintiff in Mirotznik v. LaBove, 000756-2002. The father is represented by the Great Neck firm of Jerome A. Wisselman. Mr. Wisselman's associate assigned to the case, John Virdone, said the firm would not discuss the case until it is resolved. 

The disappearing dollars came to light when the LaBoves were in the throes of divorce in 1998, Mr. Mirotznik said. At the time, he added, Nassau Supreme Court Justice Anthony L. Parga asked the couple which parent had custody of their son's earnings. Each pointed the finger at the other, Mr. Mirotznik said, adding that neither could account for how much their son earned, who spent it or how much was left. 

In 1999, Nassau County Surrogate Judge Raymond Radigan appointed Mr. Mirotznik as Joshua's property law guardian, assigned to the task of recouping the lost earnings, which the attorney estimates exceeded $300,000. But the parents agreed on a figure of $150,000, and in March 2001 executed confessions of judgment in that amount, plus interest at 12 percent a year. An underlying stipulation, which made the parents joint and severally liable to their son, was also ordered by the surrogate. "It was understood that payment would be forthcoming," Mr. Mirotznik said. It was at this point that Joseph LaBove began his "torturous route of avoidance, delay and non-compliance," Mr. Mirotznik said. 

That route has included stops at the U.S. Bankruptcy Court for the Eastern District, where the father filed for protection from creditors, then later withdrew the petition. Seven years later, the money is still unpaid and with interest Joshua's parents now owe him nearly $250,000. 

Martin N. Kroll, an attorney with Kroll Moss & Kroll in Garden City was tapped as receiver of Joseph LaBove's used-car dealership, J&M Motor Cars. In his order appointing Mr. Kroll, Justice Dunne empowered the receiver to operate the business or — if need be — liquidate J&M's assets. 

Mr. Kroll said in an interview, however, that before he could carry out his duties, Mr. LaBove and his associates apparently liquidated the dealership's assets by themselves, in defiance of a court order enjoining them from doing so. "We are trying to locate the proceeds of that sale," Mr. Kroll said. 

In papers filed in support of Mr. Mirotznik's contempt application, Mr. Kroll called the litigation "a travesty of justice." Citing to Justice Dunne's Dec. 17, 2003 order appointing him as receiver, Mr. Kroll said in those papers that Mr. Mirotznik had demanded that Joseph LaBove produce eight separate classes of financial records, including title deeds, loan documents, business ledgers, credit card statements and accounts receivable information. Mr. LaBove failed to produce or account for any of those documents, the receiver said. 

Joseph LaBove disagreed. Although his attorneys declined to comment on the case, court documents reveal that Mr. LaBove did supply at least some documents that he said were responsive to Mr. Mirotznik's demands. Mr. Mirotznik called the documents "worthless." But because of that production, Joshua LaBove's father maintains that he should not be held in contempt of court. He also claims he was never properly served with the court's order directing him to produce the papers. 

Gregg Roth, an associate of the Wisselman firm, challenged the contempt motion on technical grounds, arguing that the original application had been submitted over the signature of an attorney who, Mr. Roth asserted, lacked first-hand familiarity with the dispute. 

Last January, Justice Dunne rejected the arguments of Joseph LaBove and Mr. Roth. Rejecting the issue of improper service of the order, the judge wrote that it was "irrelevant," adding that the father "indisputably had knowledge of its contents." Nevertheless, Justice Dunne added, a hearing should be held to determine the extent of Mr. LaBove's alleged compliance. 

"We would like the matter resolved," Mr. Kroll said. "Everyone's patience is being tried at this point." In an earlier affidavit, Mr. LaBove accused Mr. Mirotznik of ginning up the litigation. "Plaintiff has unfettered access to the 'war chest' comprising my son's account and the financial incentive to foment litigation," Mr. LaBove stated. 

Mr. Mirotznik called the comment "outrageous." He also defended his enforcement effort, stating that as a court-appointed guardian, he is merely trying to do a good job. He called the duration of the dispute "unimaginable." 

Mr. Mirotznik's objective now is to have Joseph LaBove jailed. "Incarceration is the focus," he said. "Usually when people are incarcerated, money appears; they see the light." 

Charles Mirotznik notes that the New York State Arts and Cultural Affairs Law §35 invites, but does not mandate, court oversight. If a Supreme or Surrogate's court becomes involved in a child performer's career, the statute mandates detailed record keeping and the establishment of set-aside bank accounts. The law, however, is routinely neglected, he said. "That's how children lose their income," he said. "Parents dip." 

Now a college student who requested that his whereabouts not be disclosed, Joshua LaBove responded to a request for an interview with an e-mail stating, "I am disappointed in the totality and avoidance of my father's actions toward me and amazed at how much time and money he is willing to spend to ruin both a father-son relationship and my childhood assets." 

by Andrew Harris

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