Dunn v Braick

[*1] Dunn v Braick 2006 NY Slip Op 52459(U) [14 Misc 3d 1209(A)] Decided on September 13, 2006 Supreme Court, Oneida County Julian, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 8, 2007; it will not be published in the printed Official Reports.

Decided on September 13, 2006
Supreme Court, Oneida County

Gail T. Dunn and Robert L. Dunn, Plaintiffs

against

Salim Mansour Braick, M.D. Meriam Braick, Faek Braick, Individually and as Trustees of the Braick Family Trust, Defendants. Gail T. Dunn and Robert L. Dunn Plaintiffs Salim Mansour Braick Defendant In the Matter of the Estates of Salim Mansour Braick and Lori Ellen McSweeney In the Matter of the Guardianships of Jullanar Meriam Braick and Peter John Braick



Gail T. Dunn and Robert L. Dunn Plaintiffs v

against

Salim Mansour Braick Defendant



In the Matter of the Estates of Salim Mansour Braick and Lori Ellen McSweeney



In the Matter of the Guardianships of Jullanar Meriam Braick and Peter John Braick



CA2004-0001284



APPEARANCES:

DURR and KEINZ (Donald E. Keinz, Esq., of Counsel) for the Plaintiffs Dunn

FELT EVANS, LLP (Jay Williams, Esq., of Counsel) for Defendants Salim Braick, Meriam Braick, and Faek Braick as Trustees of the Braick Family Trust.

KOWALCZYK, TOLLES, & DEERY, LLP (Andy Kowalczyk, Jr., Esq., of Counsel) for non-party MAZ Five

MARTIN, GANOTIS, BROWN MOULD & CURRIE (Andrew Schwab, Esq., of Counsel) for the Defendant Braick, M.D. and Petitioner Faek Braick, Surrogate's Court.

Doreen St. Thomas, Esq. for the Estate of Salim Mansour Braick and Lori Ellen McSweeney

STEATES, REMMEL, STEATES & DZIEKAN (Carl Dziekan, Esq.) Court Appointed Receiver.

John A. Maya, Esq. for Petitioner Faek Braick

BOND, SCHOENECK & KING, LLP (Richard Weber, Esq., of Counsel) for the Petitioner Faek Braick

KERNAN & KERNAN, P.C. (Leighton R. Burns, Esq., of Counsel) Court Appointed Administrator of the Estates of Salim Mansour Braick adn Lori Ellen McSweeney

GETNICK, LIVINGSTON, ATKINSON GIGLIOTTI & PRIORE, LLP (John Livingston Esq., of Counsel) for non-party Mortgagee Federal Credit Union

Paul M. Gallagher, Esq., of Counsel, for non-party Vail

Karl E. Manne, Esq., of Counsel, Law Guardian of Jullanar Meriam Braick and Peter John Braick



Robert F. Julian, J.

As in matters well chronicled by Charles Dickens [FN1] and Franz Kafka [FN2], these cases again come before this Court, having traveled to two other Supreme Court Justices and one Acting Supreme Court Justice and/or Surrogate in the interim.

The action Dunn v. Braick CA2003-002960 is a medical malpractice action wherein the Defendant defaulted and a default judgment was entered, resulting in the claims against the Trust. The related Supreme Court actions mentioning the "Braick Family Trust" involve the question of whether or not certain properties allegedly conveyed by Salim Braick to a Trust were valid, or were void as in fraud of creditors. There was a default in answering and a default judgement entered.

In subsequent proceedings a receiver was appointed and enforcement proceedings were attempted. During the course of such attempts Salim Braick died, and all matters were held in abeyance until a personal representative had been appointed.

The Estate of Dr. Braick was initially presented to the Surrogate of Oneida County for handling, but Hon. David Murad, Surrogate, had a conflict and the matter was transferred to Herkimer County. This Court has been advised by the Administrative Judge's office that the said transfer was made to Judge Kirk in Herkimer County as an Acting Supreme Court Justice, not as Surrogate, in order to make the transfer administratively feasible.

Judge Kirk, in his capacity as an Acting Supreme Court Justice, but functioning as Surrogate, issued limited letters of administration dated June 5, 2006 in Dr. Braick's Estate to Lisa K. McSweeney, the mother of Lori Ellen McSweeney, deceased, and grandmother of the children of Dr. Braick and Lori McSweeney. The said letters are ordered to be part of the record on this decision and order.

On June 21, 2006, at the request of the Attorney for the Administrator, the Attorney for the Plaintiffs Dunn, and the Receiver, this Court issued an order, consistent with the authority granted in the Letters of Administration and prior decisions/orders of this Court regarding the appointment and authority of the Receiver, to direct the Receiver to sell the real property in the estate and, thereby, convert those assets of the estate to cash. The said order is ordered to be part of the record on this decision and order. While liquidation of the real property could, ultimately, presumably aid enforcement of the money judgment in Dunn v. Braick CA2003-002960, neither the order nor the actions authorized in it constituted enforcement of the money judgment herein. The Receiver was neither empowered nor directed to satisfy the judgment or any part thereof, or [*2]do anything other than convert the asset. Such conversion appeared entirely consistent with the Administrator's powers pursuant to the Letters and fiduciary responsibility to preserve the estate's assets. Faek Braick, the person represented to the Court to be in possession of and living, with his wife and children, in the major real estate holding of 400+ acres and a home in Vernon, had, according to showings made to this Court, and never disputed, not paid rent to the estate, failed to make mortgage payments, failed to pay real estate taxes, and, most significantly, failed to maintain insurance on the property, thus leaving the estate's principal real estate asset and perhaps principal asset of any kind, for all this Court knows exposed to physical or financial ruin. That exposure would not attach to cash in the Receiver's trust account, and conversion to that certainly appeared to be in the best interests of the Estate, its beneficiaries, and all interested persons. CPLR §5208 was not implicated in or violated by the June 21 order. It is less than clear that this section would be violated in any event, since the overall enforcement proceeding was already underway. See Oysterman's Bank & Trust Co. v. Weeks 35 AD2d 580, 313 NYS2d 535 [2nd 1970]. The Receiver was restrained from paying any funds to the Judgment Creditors, or otherwise "enforce" their judgment, by prior standing order of this Court.

An ex parte application was made on July 10, 2006 to the all purpose Judge in Oneida County, Justice Grow (as the undersigned was on vacation July 10 though 12), to stay this order. The stay was denied. Then, on July 12, 2006, an ex parte application was made to Supreme Court Onondaga County seeking to stay this Court's order. That application was granted and the matter was made returnable before Judge Kirk in Herkimer County on July 17, 2006, even though the undersigned was available at that time to hear the application addressed to this Court's order.

The Surrogate's Court, Herkimer County, then made an Order dated July 19, 2006, suspending the limited letters and restraining further action by the Administrator and Receiver, thereby restraining this Court's prior order. The said order is ordered to be part of the record on this decision and order.

The Receiver has now moved for all matters to be transferred to or joined in this Court. The Receiver, having been duly appointed by the Court and now being subject to inconsistent orders of this Court and Judge Kirk, has standing to make this motion. The attorney for the temporary guardian of Salim Braick's children, Administratrix of the Estate of Lori E. McSweeney, and sometimes Administratrix of the Estate of Salim Braick joins in the Receiver's motion on behalf of her client. The children of Salim Braick and Lori E. McSweeney are the persons entitled to the proceeds of the estate of Salim Braick under intestacy. They are also entitled to letters of Administration of the estate of Salim Braick if there is no will, and they are entitled to participate in the litigation concerning whether or not there is a will. Under these circumstances the temporary guardian of the children has standing to appear regarding the issues concerning the Estate of Salim Braick and the issues affecting the value thereof. The temporary guardian's motion is likewise properly before this Court.

The unhappy history of this matter is set forth to provide background and rationale to the decision entering these motions and determination of them in bringing these matters under one judicial roof.

There is a separate motion presently pending before this Court, under index numbers CA2004-000258 AND ca 2004-001284 brought by non-party intervenor MAZ Five LLC, a "person aggrieved" pursuant to CPLR §6514(b) and thus properly before the Court in relation to the above entitled matters, relating to the disposition of real property and/or money formerly owned by Salim Braick, though allegedly owned by the Braick Trust, and matters ancillary thereto. There is also a pending cross-motion by the Dunn Plaintiffs under those index numbers. The pendency of this motion and cross-motion is entirely ignored in the papers alleging that there are no pending issues in this Court concerning the affairs and property of the Estate of Braick and the pending Supreme Court actions. This, notwithstanding that Attorneys Schwab and Williams, who have filed papers opposing the Receiver's and Temporary Guardian's motion herein inter alia on such grounds, filed written objections and/or responses regarding the motion of MAZ Five, LLC. [*3]

In the course of considering the MAZ Five motion and the other proceedings relating to the affairs of Dr. Braick, it became apparent that these matters must be under the aegis of one Court. The attorneys representing Faek Braick Martin, Ganotis, Brown, Mould & Currie, per Andrew Schwab, Esq. who also represented Dr. Braick previously, moved (in response to the MAZ Five motion) for transfer of all the above captioned Supreme Court matters to Acting Supreme Court Justice Kirk, for management in his role as Surrogate of Herkimer County. In his supporting affidavit Mr. Schwab states "11. It also seems clear that resolution of these matters will benefit from having one judge overseeing all issues." [Schwab affidavit sworn to August 2, 2006]. It is noteworthy that counsel for Mr. Faek Braick has brought this issue before Justice Carni in Onondaga County and Justice Grow in Oneida County in the face of a three day absence from chambers of the undersigned, further underscoring the need for single administration of these matters.

Comment on the question whether these matters should be transferred to Judge Kirk was solicited from all interested counsel. Submissions were received from Mr. Schwab, per above, as well as from: Jay Williams, Esq.; Richard Weber, Esq.; Carl Dziekan, Esq. (letter prior to the instant motion); Andrew S. Kowalczyk, Jr., Esq.; Doreen St. Thomas, Esq.; Donald Keinz, Esq.; and John Maya, Esq. The foregoing are ordered to be part of the record on this motion. I spoke directly with Judge Kirk, not about the merits of this matter, but rather about the administration of these cases. I also spoke with the Law Clerk of the Administrative Judge of the Fifth Judicial District. These contacts were not on the merits and were initiated in an attempt to resolve a circumstance where two courts of parallel jurisdiction had stayed my order, an order that I believed was correct and proper when I signed it and which I believe is correct now.

The purpose in contacting each court was not to consider the substance, but rather to determine if there would be coordination regarding special issues such as discovery scheduling, a sharing of documents. There is substantial support in the literature and case law for such contact between Judges. See Manual for Cooperation Between State and Federal Courts, Federal Judicial Center, National Center for State Courts, State Institute for Justice, 22 (1997); referencing In Re Ohio Asbestos Litig., 83 OAL; In Re: Air Crash Disaster at Sioux City, Iowa on July 19, 1989, 734 F.Supp., 1425.

Judge Kirk advised that he believed that this Court was best suited to handle all matters except the guardianship matter which is pendente lite before him. I advised all Counsel of this recommendation on September 5, 2006 in open court and invited further submissions.

As matters stand, the Receiver is subject to inconsistent orders, each from a Court with apparent jurisdiction, neither stayed by such Court or the Appellate Division. This is an impossible situation, and these matters must be brought under the supervision of a single part of court. This Court has determined that Supreme Court, Oneida County, is the appropriate forum. This Court has been living with these related matters for over two and one half years. It has issued at least five prior written decisions relating to these matters, and has considered numerous motions. It has held hearings concerning the nature of the transactions between Dr. Braick and the Trust, and is thus in some measure familiar with the property of the Braick estate and its management to date. The property to be administered in the Estate of Braick is the same property much litigated over in regard to the Trust matters herein. The rights of the non-party intervenor MAZ Five, LLC in the litigation before this Court are related to property whose ownership is at issue in the Trust controversy. It is very broadly the circumstance that the rights and interests of the parties in the underlying malpractice action, the consequent trust action, the non-party intervention, and the Estate of Braick are all intricately interwoven, and actions relating to one affect the other. This was of course made glaringly obvious by the inconsistent orders directed at the Receiver.

CPLR §602 provides: a) Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all [*4]the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Cases pending in different courts. Where an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district or justice court in the county and consolidate it or have it tried together with that in the county court.

CPLR §604 provides: Upon motion of any party, the supreme court may order that an issue of fact in an action pending in another court, except an action relating to real property pending in a county court, be tried in the supreme court in another county upon such terms as may be just. After the trial, the clerk of the county in which it has taken place shall certify the minutes thereof, which shall be filed with the clerk of the court in which the action is pending. Subsequent proceedings shall be the same as if the issue had been tried in the court in which the action is pending

These sections provide the remedy for the problem before this Court: how to best manage these inextricably intertwined matters and provide an expeditious (if that word can conceivably have a place in this litigation) or at least coherent forum for the resolution of these matters. Supreme Court has the authority provided by the sections because it is a court of general jurisdiction, and any issues that can properly be before in this case Surrogate's Court can be before this Court. Under the present circumstances the joinder with actions before this Court or movement of the Surrogate's proceeding to this Court will effectively provide a single forum with plenary power to adjudicate all these matters. There is no showing of prejudice to any party arising from such change of place of trial or joinder. See Humiston v. Grose 144 AD2d 907, 534 NYS2d 604, [4 Dept.,1988]; Strauss v. Long Island Sports, Inc. 60 AD2d 501, 401 NYS2d 233 [2nd 1978]; Gutman v. Klein 26 AD3d 464, 811 NYS2d 413, [2 Dept.,2006].

There is one related matter which the Court concludes should remain with Judge Kirk. That is the question of guardianship of the children of Lori McSweeney and Salim Braick. None of the issues described above regarding the Estate's property, the Trust, or the medical malpractice litigation concern the best interests of the children, nor has that issue ever been before this Court. Furthermore, Judge Kirk has had occasion to take proof in regard to the guardianship issue. It is therefore determined that the matter of the children's guardian should remain before Judge Kirk.

Is is therefore

ORDERED that all matters related to the above captioned matters, except as provided below, including those matters presented in the Herkimer County Surrogate's Files relating to the estates of Braick and McSweeney that is, Index or File numbers CA2004-0001284, CA2004-000258, CA 2003-002960, 06066 and 06065 are removed to this Court pursuant to CPLR §§ 602 and 604, and it is further

ORDERED that the matter of the guardianship of the children of Lori McSweeney and Salim Braick that is, File numbers 05228 and 05227 remain before Judge Kirk, and it is further

ORDERED that the parties to the proceeding concerning the putative Will of Salim Braick, deceased, try this issue on October 16, 2006 at 10:00 a.m.

The Court shall not file or serve this decision/order. The Receiver is directed to do so, and [*5]to serve all other parties and interested non-parties.

ENTER

Utica, NY _____________, 2006

__________________________________

Robert F. Julian, J.S.C. Footnotes

Footnote 1:Bleak House

Footnote 2:The Trial