Sepulveda v Aviles
Annotate this CaseDecided on March 7, 2005
Supreme Court, New York County
Elba Sepulveda and VICTOR SEPULVEDA, EXECUTORS OF THE ESTATE OF AGNES SEALS, Plaintiffs,
against
David Aviles, Defendant.
119286/98
Saralee Evans, J.
Plaintiffs moved for an order holding defendant in contempt of court for failing to respond to an information subpoena. Upon defendant's default, the motion was granted by decision and order dated August 17, 2004 to the extent of scheduling a hearing on the motion for September 30th. Thereafter, plaintiffs brought a second motion seeking to hold defendant in contempt pursuant to 22 NYCRR 130-1 on the grounds that he failed to comply with the court's order and judgment issued after trial. The second motion was made returnable on September 30th. On that date, a hearing commenced at which testimony was adduced pertaining to the allegations stated in both motions. Accordingly, the motions are consolidated for decision.
In the underlying action plaintiffs sought to rescind the sale of a building on the grounds that its conveyance to defendant was predicated on fraud or undue influence. A jury trial was held before the Honorable Norman Ryp in 2002. In its decision after appeal, the Appellate Division modified the trial court judgment, set aside the verdict and remanded the action to the Supreme Court for retrial. The appellate court ruled that the court below erroneously placed the burden of proving undue influence on plaintiffs and that under the prevailing circumstances in which a confidential relationship existed between defendant and the decedent, the burden is shifted to the beneficiary here the defendantof the transaction to prove that the conveyance was "fair and free from undue influence." Sepulveda v. Aviles, 308 AD2d 1 (1st Dept 2003). The retrial was conducted on three days in May, 2004 after which I ruled in favor of plaintiffs finding that defendant failed to meet his burden.
On August 14, 2004 I issued an order and judgment after trial ruling that the transfer of real property located at 306 East 119th Street be set aside nunc pro tunc, and deemed its transfer null and void. I also ordered, inter alia, that rent rolls, records, bills, keys, leases, security deposits and check books be turned over to plaintiffs. The order and judgment was served upon defendant's counsel on August 30, 2004. Alleging that defendant failed to comply with the court's order and judgment, plaintiffs moved under the Court Rules of the Chief [*2]Administrator §130-1.1, et seq. to hold defendant in contempt and to sanction him by awarding plaintiffs attorneys' fees.
At the hearing defendant testified under oath that the original leases and bank records were stored in a file cabinet in the basement of the 119th Street building. He agreed that he and his attorney would meet plaintiffs' attorney at the building to turn over the documents on October 4, 2004. Defendant and his attorney failed to keep that appointment. The contempt hearing was continued on October 7th at which time a new meeting date was set for conveyance of the leases, bank records at other documents. Once again defendant did not appear at the building on the agreed to date of October 13, 2004. However, on that date plaintiffs' counsel and the building's managing agent searched the entire basement in an unsuccessful effort to find the original leases and bank records.
Testimony continued on October 28th and was to resume November 24, 2004. Without explanation, defendant failed to appear in court on the latter date but sent word to the court through his attorney that he was in possession of the documents plaintiffs sought and would produce them in court when the hearing resumed. That promise was hollow. Defendant terminated the services of his attorney and appeared pro se on December 7th, the final hearing date. On that date he testified that he does not have the original leases for tenants in the 119th Street property, he does not have money in the amount of $28,612.76 representing rent that he had been ordered to turn over to plaintiffs for the months of May, June and July, 2004, or security in the amount of $7,153.19 also included in the judgment of August 14, 2004. Toward the conclusion of the hearing, plaintiffs orally moved to have defendant incarcerated for his failure to comply with the judgment and for his dilatory behavior before the court.
A party seeking sanctions pursuant to 22 NYCRR 130-1 must demonstrate that defendant's conduct was calculated to impede the rights of a party to a civil proceeding. Clinton Corner H.D.F.C. v. Lavergne, 279 AD2d 339 (1st Dept 2001). In this regard, plaintiffs proved that defendant defaulted on a contempt motion brought for his failure to respond to an information subpoena propounded by plaintiffs, and failed to comply with the court's order and judgment after trial requiring him to turn over materials and monies to plaintiffs. After a lengthy hearing at which defendant provided no credible reason for his defaults, I find that defendant's conduct violated §130-1.1 in that it was calculated to defeat plaintiffs' rights.
In his testimony given over several days, defendant gradually responded under oath to all but three of the questions propounded in plaintiffs' information subpoena. While this testimony was not always credible or timely, by the conclusion of the hearing plaintiffs possessed most of the information they sought regarding defendant's finances. Defendant's dilatory actions were contemptuous of the Court and were calculated to defeat plaintiffs' remedies. The proceedings were unnecessary and costly to plaintiffs. Accordingly, I find that the defendant should be held in contempt for failing to respond to the information subpoena.
Defendant's failure to turn over leases, security deposits, cash receipts and ledgers pursuant to the court's order and judgment of August 14, 2004 warrants a finding of contempt for which he is sanctioned in the form of an award to plaintiffs of legal fees and costs for the expenses incurred in the consolidated motions. Accordingly, counsel is awarded fees of $4,097 and costs of $625. The branch of the motion seeking to have defendant incarcerated is denied. While I believe that defendant was not credible, he did immediately turn over the building and its [*3]keys; additionally he conveyed to plaintiffs the insurance policies as well as some monies and documents mandated by the August 14, 2004 order and judgment during the contempt hearing. Moreover, I do not believe that there is sufficient evidence before the court that warrants the conclusion that defendant is actually in possession of all of the documents and monies that plaintiffs seek. It is hereby
ORDERED that plaintiffs' motion for sanctions is granted to the extent that defendant shall pay the sum of $4,722. to plaintiffs as and for their just expenses on the motion; and it is further
ORDERED that written proof of such payment be provided to the clerk of Part 51 and opposing counsel within 30 days after service of a copy of this order with notice of entry; and it is further
ORDERED that upon the failure of the defendant to make such payment,
plaintiffs may apply to the court ex parte for the entry of a money judgment in said amount.
Dated: March 7, 2005_________________________
New York, New YorkSaralee Evans, JCC
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
