Queen Bess

by Preston, Jennifer

  “I’m not the Nancy you once knew,” she told him, her voice rising. “I got real smart. I was a real asshole. Okay, I’m not an asshole anymore. That I promise you. Somebody said, ‘Boy, they’ll feel sorry when Nancy gets back on her feet’ when I was having a nervous breakdown at our fancy beach house two summers ago and crying in a limousine. You know, ’cause I was a dope and I didn’t want to believe what was happening, okay? Well, I’m on my feet now, okay? And I’m on them square.…”

  Andy insisted that she would not receive a penny more from him after a court battle and that she would have to end up paying $100,000 to $150,000 in attorney fees.

  “I don’t know if I can afford to go to court,” he said. “I may go broke.”

  “So go broke,” Nancy said angrily. “I don’t give a shit. Go broke. Go drop dead. I don’t care what you do. Take Bess.… She’s almost a senior citizen. Fucking asshole that you are. You’re going with a fucking senior citizen with liver spots. So gross. You fucking putz, what’s she doing to you? … You chucked your whole life for her. What an asshole you are. People laugh behind your back.… She did you real good. Breaking up the home of five children.”

  “Nobody can break up a home, Nancy,” Andy interrupted. “You know that. You lost me, okay? You lost me.… No woman stole me from you. No woman’s capable.”

  Their conversation ended once again with no progress having been made toward settlement. They tried again over the next few months to negotiate but to no avail. Any hope Nancy had of prodding him into offering a better settlement by threatening to expose his insurance claims did not materialize.

  By the fall of 1984 Nancy was looking for a trial date. Still Andy refused to provide access to his financial records, which her lawyers needed to build her case. Meanwhile other issues, which needed to be resolved before their divorce was settled, continued to crop up, such as who would pay for repairs at the Fifth Avenue apartment building.

  Even though Judge Gabel left the court’s matrimonial division in June and was no longer ruling on divorce cases, Nancy discovered in December 1984 that Andy’s lawyers were trying to have Judge Gabel continue to make rulings in her divorce case.

  Without her attorney’s knowledge, Nancy wrote to Judge Gabel asking that the judge voluntarily remove herself from the case. The letter, dated December 22, 1984, began:

  Dear Justice Gabel:

  I am the plaintiff in this action. My attorney, Herman Tarnow, did not participate in the preparation of this letter, and does not even know that I am writing it.

  I am appealing to you directly to disqualify yourself from my case because I have no other alternative. Since the inception of this case, your decisions have endangered my ability and that of my two small children to subsist pending the ultimate trial of this matter. And I have recently learned that motions in our case made after you left the matrimonial part will be referred back to you.

  I do not mean this letter to be accusatory, but I think a review of your prior decisions will raise in your own mind the possibility that something might have interfered with your sense of justice and fair play.

  (As you know, the New York Post reported on October 18, 1983, that your daughter was employed by Bess Myerson, who is my husband’s acknowledged paramour in this case. I want to believe that this fact did not interfere with your decisions. Miss Myerson was later named the correspondent in this case.)

  I will briefly refresh your recollection of the standard of living enjoyed by Mr. Capasso, and myself, and our two children prior to our separation.…

  Nancy then proceeded to enumerate in her letter the costly trappings of the lifestyle to which she and the five children had become accustomed—the fleet of cars, expensive vacations, and a huge summer home. She complained that Judge Gabel’s decisions caused hardships for her family. The letter concluded:

  That we are surviving this ordeal at all is due entirely to the Appellate Division’s reversal of your decisions. Because we have heard of your fine reputation for protecting women in my circumstances, your decisions in my case are inconsistent with your rulings in other cases, and are inexplicable. I am sure that you can see this.

  In sum, the only appropriate action you can now take is to remove yourself from my case. For the record plainly represents, at the least, an appearance of impropriety.

  Respectfully yours,

  Nancy Capasso

  Nancy said she never received a reply.

  Judge Gabel later acknowledged that she read the letter and threw it away. It was found years later crumpled up in the file.

  She made no other rulings in Capasso v. Capasso.

  Over the next few months, through the spring of 1985, Andy made several more attempts to settle the divorce before going to trial. As he had feared, Tarnow and Nancy had finally been given permission by the courts to go through his business records.

  All of the records were spread out on a table in a conference room in Andy’s Long Island City company headquarters. Nancy worked with Tarnow and an accountant to try to piece together Andy’s complicated business dealings. Among the documents they found a bundle of mysterious checks made out to cash to dozens of individuals. While they did not know the full extent of Andy’s scheme, Tarnow and Nancy made copies of the checks. In any event, Tarnow thought, the checks would help prove his case that Andy was worth much more than he claimed. As it turned out, the checks were eventually linked to Andy’s insurance claims scheme.

  The trial date was finally set for July 8. A few weeks before that day Andy made one last attempt to settle the case. He called Nancy and doubled his original offer to almost $4 million. He wanted the divorce out of his life, he said, so he could get his mind back on his business and get on with his life.

  “I wouldn’t make the same mistake of marrying her like you,” Andy said.

  “So what do you get out of her?” Nancy asked.

  “What do I get out of her? I get peace and tranquillity, because I’m not married to her.”

  “She doesn’t look like the type to give peace and tranquillity,” Nancy said.

  “Maybe not. But at least I’m not married to her. If I was, it would be worse than with you.… Where’s she going to go? I’m her only outlet.”

  “Oh,” Nancy said. “She doesn’t have any other beaux?”

  “Maybe she does. Who gives a fuck? She does me a favor.”

  “Oh? What favor?”

  “I don’t have to see her every night. That’s the favor.”

  They talked for another half hour but still were unable to reach a settlement.

  In the days before the trial, Tarnow attempted to increase the pressure on Andy by going over to City Hall and meeting with Mayor Koch’s top counsel, Patrick Mulhearn, about calling the mayor and special mayoral assistant Herb Rickman to testify that their good friend, cultural affairs commissioner Bess Myerson, had committed adultery. Tarnow knew that both Koch and Rickman had visited Andy’s Westhampton Beach home while Bess was living there, and he knew that Andy and Bess would not want Mayor Koch called to testify at Andy’s messy divorce trial.

  During their meeting, Tarnow said later, he told Mulhearn he considered it improper that Bess had accepted gifts from Andy, since he was a city contractor. But Mulhearn said the gifts were not unethical because “they are good friends.” Tarnow also later said that he brought up the fact that Sukhreet Gabel was hired by Bess while Judge Gabel was presiding over the case. Mulhearn insists, however, that Tarnow did not discuss Sukhreet’s hiring with him at all.

  On July 8, 1985, the divorce trial Capasso v. Capasso opened in the Manhattan courtroom of state supreme court justice Andrew R. Tyler, who did not have a reputation for distinction on the bench. In November 1977 Tyler had been convicted of committing perjury for lying to a grand jury about meeting with a convicted gambler. The jury’s verdict, however, had been overturned without an order for a retrial. Later Tyler was indicted on another charge for improperly granting bail to a defendant, but that charge was di
smissed before trial.

  Nancy was worried about Judge Tyler’s well-known friendship and political connection to Stanley Friedman, the powerful Bronx Democratic party boss, who was a close friend of her husband’s. Andy had hired Friedman on a few occasions to represent him on various matters. Friedman was a powerful figure in city government at the time. He was said to control dozens of key jobs in the city’s Department of Environmental Protection, the city agency that awarded Andy his multimillion-dollar sewer contracts.

  Nancy recalls feeling as if she wanted to turn on her heel and walk out the door. Once again she was up against the city’s powerful pols and judges, and after her experience with Judge Gabel, she thought she would have no chance of getting a fair trial. She told Tarnow that she wanted to request that another judge handle their case, but Tarnow explained that they had insufficient grounds on which to ask Tyler to recuse himself. “Let’s make a record, and we’ll win on appeal,” he told her.

  Since the most important issue in the case was money, the lawyers agreed to get some other issues out of the way, such as to whom the divorce should be granted. Both Andy and Nancy were accusing each other of adultery, and neither wanted to waste days proving the other’s allegations, so Nancy abandoned her plan to call Bess Myerson and Mayor Koch to the witness stand to prove that Andy had committed adultery. In exchange for her not pursuing that tack, Andy agreed to give her the divorce on the grounds of cruel and inhuman treatment.

  With the first phase of the divorce case now over, the lawyers began the fight over Nanco and the couple’s extensive real estate holdings, property that was worth millions of dollars.

  Andy took the stand first. Adamant that Nancy should not be awarded any portion of his sewer business under the state’s equitable distribution law, he denied that she had played any role whatever in the forming of the company. He also claimed that she did not entertain his business associates, like other wives, and that she did not contribute much to the household because they had had full-time servants for years. He did acknowledge, however, under cross-examination, that he had made Nancy an officer in the company. “But she was only a figurehead,” he insisted. “She never did anything for the company, Mr. Tarnow. If she ever did anything for me, it was in the form of a favor, but she did not work for the company, and even when she was on the payroll for the company, it was in a no-show position.…”

  While Nancy decided against using the incriminating tape recordings in which Andy pleaded with her not to go to the authorities, Tarnow cross-examined Andy on the stand about the dozens of mysterious checks used in his insurance claim scheme. Andy’s lawyer did not let Tarnow go very far before objecting on relevancy grounds. Judge Tyler agreed.

  The twenty-one-day trial extended over four months. In the middle of August Tarnow tried his next tactic—Bess Myerson. He sent a subpoena requesting that she appear in court to testify at the trial and that she bring along with her “all records of expenses paid on your behalf.” Tarnow contended that Andy had squandered at least $100,000 in “marital assets” on Bess and that that money should be added to the pot, to be divided in half.

  On August 28, the day she was to show up in court, a lawyer, Leonard Shalleck, appeared on Bess’s behalf and requested that Judge Tyler quash the subpoena, arguing that her testimony and the documents sought were not “relevant or material to any of the issues here.”

  But Tarnow said that he needed her testimony to prove “the wasteful dissipation of marital assets” on an “adulteress” and gave as examples Bess’s use of the Capasso family car and Nanco limousines, Andy and Bess’s seaplane hops, and their trips together, all of which Andy had paid for.

  Andy’s attorney, Sam Fredman, argued that all Tarnow wanted to do was embarrass Bess and use her because she was a public figure.

  Judge Tyler agreed to quash the subpoena. Bess did not have to appear in court at all.

  Even though he did not have Bess’s testimony, Tarnow continued to hammer away at Andy on the issue, asking him to detail his expenses and his business and real estate holdings.

  Then, after Andy’s testimony, accountants for both sides took the stand with their varying estimates of Andy’s net worth, followed by real estate brokers who testified about the value of the Capasso properties and antique dealers who offered estimates on the value of the paintings and furniture in the Fifth Avenue apartment.

  On September 11 Nancy finally got her chance to tell her side of the story. She painted a much different picture of the early days of Nanco, which she insisted was named after her. She described doing the payroll, dropping off bids, and handling the books. “I was very involved, always,” she said.

  By the middle of October both sides had completed their testimony and Judge Tyler asked the lawyers to present him with “findings of fact and conclusions of law,” which would set forth what each side wanted in the divorce case and why. Tarnow was still looking for $7.5 million. Andy’s attorney claimed that Nancy should get no more than $2 million, based on dividing up some of the real estate they owned together. He also claimed that Nanco was not part of the pie.

  After almost two months of deliberation Judge Tyler issued his final decision on December 18, 1985. Although Nancy had been skeptical from the beginning because of Tyler’s political connections with her husband’s pal, Stanley Friedman, she was unprepared for his final judgment of divorce.

  Judge Tyler had virtually lifted word for word the findings and conclusions proposed by Andy’s lawyers at the end of the trial. Accepting Andy’s contention that Nancy had made absolutely no contribution to the marriage as a wife, mother, or business associate, Judge Tyler concluded that she had no claim to Nanco and that she should not receive a penny more in alimony or child support payments. He granted her some of the proceeds of the sale of the Fifth Avenue apartment, along with the $200,000 two-bedroom condo in Westhampton Beach. The number added up to about $2 million, the same figure that Andy had offered her as a settlement a year before.

  Andy got everything else.

  Nancy was stunned. She couldn’t believe it. Judge Tyler had granted every single one of Andy’s wishes, down to the pieces of antique furniture and Royal Copenhagen china that he had asked to take from the Fifth Avenue apartment. Andy got the $1.9 million five-bedroom house on three acres in Westhampton Beach and both Palm Beach condos. Tyler also accepted Andy’s assessment that his property in Long Island City was worth $268,000, even though Nancy’s lawyer presented evidence that it was, in fact, valued at $4 million.

  Most of the $2 million Nancy was awarded was to come from the sale of the Fifth Avenue apartment. And this was $1 million less than half of the apartment’s appraised market value of $6 million in 1985. Tyler ruled that she receive only half of the market value in 1983, at the beginning of the divorce action, when it was valued at $3 million.

  Just days after Tyler issued his decision Nancy called her original lawyer, Raoul Lionel Felder, and asked him if his office would handle her appeal. Felder’s wife, Myrna, the former head of the New York State Women’s Bar Association, is legendary in matrimonial circles for arguing appeals effectively.

  At first Raoul Felder did not believe Nancy when she told him that Judge Tyler had lifted all of Andy’s lawyer’s findings and conclusions verbatim. He asked her to send over both documents. She did. Felder was astonished. In his twenty-five years as a divorce lawyer, he said, he had never seen anything like it.

  Felder agreed to waive his usual $50,000 retainer and, instead of charging $450 an hour, accepted a promissory note to be paid at the conclusion of the appeal. Determined to fight for what she believed was rightfully hers, Nancy turned once again to the court’s appellate division for justice. She had let Andy make a fool of her during his two-year affair with Bess; she was not going to let him make a fool of her now. “I could have put up with it,” she said. “I didn’t have to make waves. But that isn’t my style.”

  28

  The Fifth Amendment

  Bundled up ag
ainst the cold in a full-length mink coat, Bess strode across the wooden platform in front of City Hall to the center of the stage bedecked in red, white, and blue. It was a few minutes before noon on January 1, 1986, a bright, sunny day, and as the unofficial first lady of New York Bess was presiding over the inaugural ceremonies for Mayor Koch.

  Her arrival at the podium quieted the crowd. Almost three thousand people had packed City Hall Plaza in the thirty-nine-degree weather to witness the swearing in. Bess made a few welcoming remarks and spoke with confidence about the future, declaring, “These next four years will be even better years for our city, and for ourselves.”

  Then, as the band struck up “New York, New York,” she introduced the mayor, “our CEO,” and Koch bounded down the steps of City Hall, smiling broadly. He was jubilant about beginning his third term, having captured an extraordinary 78 percent of the vote in November.

  Koch had come a long way since those days in 1977 when Bess held his hand at campaign rallies. He was now a national celebrity, a best-selling author, even the subject of an off-Broadway play. During his eight years as mayor he had won the respect of most of the city’s movers and shakers for improving New York’s self-image, lowering the crime rate, and making such tough decisions as cutting services and raising taxes to put the city back on its feet after its prolonged fiscal crisis.

  Bess stood only inches away from her old friend as he put his hand on a 160-year-old Bible and recited the solemn oath of office. It was the second time in twelve hours that she had witnessed this scene. The night before, she and Andy had been among the thirty or so guests invited to attend the mayor’s private swearing-in ceremony at midnight at a friend’s Upper East Side town house.

  For the public ceremony at City Hall Plaza, Andy sat in one of the folding chairs arranged in neat rows in front of the Federal-style building that housed the Koch administration. Also in the audience was the U.S. attorney for the southern district of New York, Rudolph Giuliani, an aggressive and ambitious prosecutor who had become known as a latter-day Elliot Ness for having brought indictments against the leaders of New York’s most notorious organized crime families and the head of the Sicilian Mafia.