Matter of Kaminester

[*1] Matter of Kaminester 2007 NY Slip Op 52043(U) [17 Misc 3d 1117(A)] Decided on October 19, 2007 Supreme Court, New York County McCooe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 19, 2007
Supreme Court, New York County

In the Matter of the Application of Kimberly Kaminester for the Appointment of a Guardian of the Person and Property of Richard Kaminester, an incapacitated person



500160/2005

William P. McCooe, J.

The incapacitated person's daughter who was the petitioner in this Article 81 Mental Hygiene Law proceeding and is the Executrix of his Will seeks to set aside financial transactions, void the marriage and to punish Ms. Foldes, the alleged contemnor, for civil and criminal contempt for violating the temporary restraining order (TRO) in the petition. It was discovered after the adjudged incapacitated person (I.P.) Richard Kaminester had died that his live in girlfriend, Inalee Foldes, had married him and effected financial transactions involving his property inuring to her benefit. These acts took place after this Court had determined, following a hearing and interim decision dated January 27, 2006, that he "requires the appointment of a guardian." Ms. Foldes denies that she is in contempt and has moved for dismissal under CPLR §3211(A)(7) on various grounds and for a transfer to the Surrogate's Court where she has filed a right of election as the I.P.'s wife.

The petition in the Article 81 M.H.L. proceeding seeking the appointment of a guardian and a TRO was returnable on December 19, 2005 for a hearing only as to the interim relief and January 9, 2006 as to the balance of the requested relief. One of the two reasons advanced for the TRO was that Ms. Foldes was interfering with the home care workers and denying the petitioner, family and friends access to Mr. Kaminester with whom Ms. Foldes was living in his apartment. The petitioner was principally concerned about her father's health and welfare because he had fallen during the night and was unable to get up when he was left alone by Ms. Foldes.

The two relevant portions of the TRO read as follows: SUFFICIENT REASON APPEARING THEREFORE, it is:

ORDERED, that pending the hearing and determination of this proceeding, INALEE FOLDES is enjoined from removing RICHARD KAMINESTER from the State of New York; from interfering with his receipt of home health care; and, from going within 100 yards of RICHARD KAMINESTER when he is outside of his residence; [underlined material crossed out by the Court] [*2]and from keeping KIMBERLY KAMINESTER or DAVID KAMINESTER from having access to him either by locking them out or any other method; and it is further

ORDERED that INALEE FOLDES shall not accept any funds or financial benefit from RICHARD KAMINESTER until the hearingand determination of this application [underlined material crossed out by the Court] for interim relief (19 Dec 05)

The hearing for interim relief directed to Mr. Kaminester's safety andfamily access scheduled for December 19, 2005 was not held because Ms. Foldes had taken him to Texas before she was served. The petitioner daughter followed them to Texas and commenced a guardianship proceeding there. Mark E. Kunik, M.D., M.P.H., a board certified psychiatrist with added Board Qualifications in Geriatric Psychiatry, examined the I.P. and found him incapable "to handle a bank account"; "contract and incur obligations"; "to enter into insurance contracts of every nature"; "to hire an attorney" but able "to handle funds of $500.00 or less." His report dated December 17, 2005 is in evidence. The petitioner brought the I.P. back to New York after she was appointed Temporary Guardian of the Person in the Texas proceeding.

A hearing was held in this Court on January 23, 2006 resulting in the January 27, 2006 Interim Decision and Order which held that Mr. Kaminester required a guardian of the person and property. The Court found that "it was not clear what his functional limitations are with regard to controlling his assets; particularly stock trading and check writing." The Court directed that another psychiatrist examine the I.P. and the parties subsequently agreed upon Christopher Robert Dennis, M.D., Diplomate American Board of Psychiatry and Neurology.

The January 23, 2006 hearing transcript reads in part: THE COURT:You may inquire.MR. SALZMAN (Petitioner's attorney):Your Honor, just so I know what areas to explore - -

THE COURT:The area we're exploring initially is whether or not a guardian should be appointed. MR. SALZMAN:So, the Court is not going to address at all the issue of access today.THE COURT:No, at least not now. We're just going to deal with the one issue before me today which is whether or not a guardian should be appointed.

If a guardian does not have to be appointed, most of the other issues may fold.

So, let's deal with the one issue. [*3]

(January 23, 2006 transcript at p 9, line 10-25).

Ms. Foldes was present in Court and represented by Ms. Brosius. She was not called as a witness. MS. BROSIUS:Your Honor, may I approach for a second?THE COURT:No. Anything you want to say can be put on the record.MS. BROSIUS:Nothing to do with the case. Do you have any idea - - are you deciding whether or not Ms. Foldes does or does not get to stay in the apartment today?THE COURT:We'll see about that. We'll talk about that today.

(January 23, 2006 transcript at p 102, line 4-13).

The transcript reflects that Mr. Kaminester's attorney expressed concern to the Court for his health after a long day in Court and the hearing was abbreviated. The issue as to Ms. Foldes remaining in the apartment, which the TRO applied to, was one of the issues not reached. The restraint in the TRO on Ms. Foldes receiving funds or a financial benefit was not objected to or considered by the Court.

The Interim Order of the Court dated January 27, 2006 which partially explains the reason for the Article 81 proceeding and the TRO states:

It is undisputed that Ms. Foldes was living with Mr. Kaminester in his apartment, that she went to Texas on October 15, 2005 leaving Mr. Kaminester without 24 hour care or notification to his family. On or about October 28, 2005, Mr. Kaminester fell during the night and remained on the floor for many hours until he was found by a home aide in the morning. Why he was unable to get up was not satisfactorily explained. The fall triggered family concerns for his health and safety and 24 hour care was arranged by the family. Upon Ms. Foldes return to New York on November 19, 2005, she interfered with the health aides and communication and visits by family members. . .

As to Ms. Foldes, for the present she can remain in the apartment provided that she does not interfere with Mr. Kaminester's health care aides and the communication of family and friends with Mr. Kaminester. She should view her status as a guest and not interfere in health care decisions. (Emphasis supplied).

The reason that the Court used the language of "for the present" is reflected in the minutes. The Court found Ms. Foldes was interfering with family visits and communication. The Court Evaluator and the family also claim that they were being denied access to Mr. Kaminester by the direction of Mr. Kaminester's former attorney after the Article 81 proceeding was commenced. [*4]Therefore the Court Evaluator could not complete her report to the Court for the hearing. However her January 22, 2006 report stated "Richard Kaminester should not have the right to enter into contracts including but not limited to contracts to marry or a cohabitation contract."The Court did not have the benefit of the balance of the Court Evaluator's report and testimony in order to render a final decision as to Ms. Foldes' status in the apartment and the psychiatrist's report as to Mr. Kaminester's functional limitations. The Interim Order adjourned the proceeding for one month for a resolution of all issues.

On February 10, 2006 the beneficiary of Mr. Kaminester's $1.6 million dollar life insurance policy was changed from the petitioner and her brother to Ms. Foldes. Ms. Foldes personally delivered the policy change form to Lockwood Pension, the servicing agent for the life insurance policy. On March 1, 2006 Mr. Kaminester and Ms. Foldes were married. Ms. Foldes signed an application for a marriage license on February 28, 2006.On March 28, 2006 the deed to Mr. Kaminester's home in Westhampton, valued at approximately $2 million, was changed from his individual ownership to add Inalee Foldes as a joint tenant with a right of survivorship. Ms. Foldes signed her name as a grantee on a combined real estate transfer tax return, credit line mortgage certificate and buyer of Real Property transfer report filed with the Office of Real Property Services of New York State. Ms. Foldes was approximately 55 years of age at this time. Mr. Kaminester was approximately 70 years of age, in poor physical health and confined to a wheelchair, apart from his mental disabilities which are reflected in the two psychiatrists reports. He died on May 15, 2006.

The hearing scheduled to be held on February 27, 2006 was adjourned by the parties because the independent psychiatrist Dr. Dennis had not completed his examination. The hearing was finally held on April 3, 2006. It should be perfectly clear that at this time the Court, the petitioner and the attorneys for the Petitioner and Mr. Kaminester did not know that the beneficiary on the life insurance policy and the deed on the Westhampton property had been changed and that Ms. Foldes and Mr. Kaminester had entered into a marriage ceremony in the City Clerk's office. It is undisputed that Ms. Foldes was in the courtroom and was represented by Ms. Brosius at this hearing, together with Ms. Foldes' witnesses to support Ms. Foldes remaining in the apartment. Ms. Foldes' personal attorney, Amelie Kraus, Esq., was also present as she had been on other occasions.

The following took place on April 3, 2006. Mr. Salzman represented the petitioner, Mr. Nussbaum represented Mr. Kaminester and Ms. Brosius represented Ms. Foldes. They were all at the counsel table. MR. SALZMAN:Good afternoon. Your Honor, when this matter - - shortly after this matter was on last time the Court issued a decision in which it determined that there would be a guardian appointed and set this matter down for additional hearing because the Court wanted to hear the testimony of a psychiatrist who had examined him particularly with regard to Mr. Kaminester's financial ability. Counsel agreed that the examination would be performed by Dr. Christopher Dennis, who is present in the courtroom and available to testify, and [*5]certainly that would go forward...

...And counsel have also agreed that the Court should today, after hearing the testimony of Dr. Dennis, should it deem appropriate to do so, counsel would consent to the issuance of an order determining that Richard Kaminester does not have the capacity to marry. THE COURT:Capacity to what?MR. SALZMAN:To marry.THE COURT:Okay. And also not to manage his own finances, correct?MR. SALZMAN:That's correct, or personal affairs.THE COURT:Or to issue any health care proxies or whatever.MR. SALZMAN:That's correct.THE COURT:So what do you want me to do?MR. SALZMAN:We would, I guess, call Dr. Dennis briefly.MR. NUSSBAUM:Well, I don't know if that's necessary, Judge.THE COURT:If he is consenting, it doesn't serve any purpose.MR. SALZMAN:Okay.THE COURT:For the purpose of being here today will you both deem the report [FN1] of Dr. Dennis to be in evidence, so it is not necessary to call him? MR. NUSSBAUM:The only issue that I had with the content of Dr. Dennis' report was the fact that it stated that he does not reside currently with his girlfriend. He does. (Emphasis supplied).MR. SALZMAN:We all agree that that is factually correct, and that was based on historical data, so that's - -THE COURT:Okay.[*6]MR. NUSSBAUM:So I would just like the record to reflect that Dr. Dennis' report be amended to reflect that.THE COURT:Anything else?MR. SALZMAN:That's it. So we'd ask the Court issue a short form order simply determining that Mr. Kaminester does not have the capacity to marry, and then we would submit proposed order appointing the temporary guardian for the Court's immediate review.THE COURT:Do you have a copy of it now?MR. SALZMAN:We have it right here.THE COURT:You both agree to it?MR. SALZMAN:That's correct.MR. NUSSBAUM:Yes.

THE COURT:Have you spoken with Mr. Kaminester? Is he in

agreement with everything you are doing? MR. NUSSBAUM:I have discussed everything with Mr. Kaminester, your Honor.

Would you like to examine him? I don't know if the Court wants to do that.

THE COURT:Hi, how are you, Mr. Kaminester? MR. NUSSBAUM:I would like to make sure he understands what his options are, and I have explained them.

THE COURT:I will just ask him.

How are you today?

THE IP:Hi.

THE COURT:We went through this last time, so it is just kind of follow-up.

THE IP:Okay. [*7]

THE COURT:You spoke with your lawyer, and he explained to you what is happening here today. And do you agree with everything?

THE IP:(Moved head up and down).

THE COURT:You want - - MR. SALZMAN:There is one additional item. One of the issues here is whether or not - -one of the issues that's not being decided today is whether or not Ms. Foldes will be residing permanently in the apartment; and we would ask if the Court set this matter down for control date of either June 6 or June 12, so that if there are issues that arise with regard to that issue, that the Court can hear them at that time.THE COURT:Well, we would leave it an open date because the issue, the issue left that we're discussing is whether or not contact with the family is being denied, okay, and that's the issue.

So what are you doing, going back to another trial period? MR. SALZMAN:Yes. It's the issue - - the issue it's - - the problem is to this point there's been nobody in charge. My client has not - -THE COURT:I understand that.MR. SALZMAN:So we want to see what happens.THE COURT:I understand that. Don't repeat. It is a trial period.MR. SALZMAN:So that's, that is a date that is particularly good for us, so we are asking - -MR. NUSSBAUM:Wait.MS. BROSIUS:And, your Honor, I didn't agree to this at all. With all due respect, I don't remember agreeing to a trial period.

(April 3, 2006 transcript at p 3, line 7 thru p 7, line 25).

A discussion continues on the record regarding the access issue. The April 3, 2006 hearing then continued. THE COURT:So basically, we will set it down for a hearing on this issue. [*8]And you tell me you want a trial period. If everybody is satisfied with the trial period, there's no reason to discuss it. If anyone feels that access is being denied, simply send a letter to the Court, and we will direct a hearing, that's all.MR. SALZMAN:Thank you, your Honor.THE COURT:That fair enough?MR. NUSSBAUM:Yes.MS. BROSIUS:Because we came today prepared to present her side if there was an issue with anybody; so I'm confused as to what the trial period is for because we are here today with witnesses, if it's necessary for the Court.THE COURT:Well, I don't care. Do you want to have the hearing?MR. NUSSBAUM:I, I don't. We have agreed on everything at this point. I don't think it is necessary to call any witness. Inalee is staying in the apartment. They have agreed to that. Let's keep it at that.MS. BROSIUS:If we agree she can stay in the apartment, that's fine.MR. NUSSBAUM:Yes, that's been agreed to.THE COURT:Are we going to have a hearing or not?MS. BROSIUS:I am confused at this for the moment thingMR. SALZMAN:There is no determination in the order that is being submitted to the Court one way or another with regard to whether or not she stays in the apartment. The issue is not addressed in this proposed order; and my assumption is that at any point anybody could make whatever application that they choose to make to the Court.MS. BROSIUS:Fine.THE COURT:The bottom line is it is an open issue. (Emphasis supplied).

As far as - - is there anything you want to do as far as that today? You are telling me no. MS. BROSIUS:That's fine.[*9]MR. SALZMAN:Other than there is an assurance of all stays will continue [FN2]and there will be no interference by Inalee Foldes with any efforts by the family to communicate by phone or in person; is that correct? (Emphasis supplied). MS. BROSIUS:That is correct. (Emphasis supplied).

(April 3, 2006 transcript at p 8, line 21 thru p 11, line 9). MR. SALZMAN:Thank you very much, your Honor.

So the Court will be issuing a short form order with regard to the marriage issue and I guess instructing me to settle an order appointing a permanent guardian; is that correct? Yes. MS. BROSIUS:Thank you.MR. NUSSBAUM:Thank you.

(Whereupon, the matter concluded).

(April 3, 2006 transcript at p 12, line 10-18).

The Court appointed a Temporary Guardian for Mr. Kaminester on or about April 11, 2006.

Mr. Kaminester died on May 15, 2006. The Court terminated the Temporary Guardian's appointment after Mr. Kaminester's death. There was no accounting because the Temporary Guardian had not marshalled any assets.

It was only after Mr. Kaminester's death that it was learned of the marriage ceremony, the change of the life insurance beneficiary and deed. Ms. Foldes filed a right of election in the Surrogate's Court. Mr. Kaminester's Will dated November 21, 2002, naming Kimberly Kaminester (daughter) as the Executrix and her and her brother as the principal beneficiaries had not been changed. Ms. Foldes was not named in the Will.

This Court by Order dated December 27, 2006 directed that a hearing be held on the issue as to whether Inalee Foldes should be held in civil and/or criminal contempt. Ms. Foldes testified at the hearing as to her knowledge of the TRO and stated " I read it carefully" and "I thought it meant that it said not to accept any financial benefit"and she thought that it was in effect only until the time of the hearing in January 2006. She testified that at the hearing on April 3, 2006 she could not hear what was going on and that she had witnesses in Court regarding staying in the apartment. She testified that she did not know what had taken place at the April 3, 2006 hearing but that she heard the portion of the stipulation that "Richard Kaminester does not have the capacity to marry." When asked why she did not tell the Court that they were already married she testified "Nobody [*10]asked me." She was asked "Did Ms. Brosius know you were married?" She answered "Yes." When asked how she knew, the witness testified "I told her - -." When asked whether Ms. Brosius knew of the other financial transactions she testified either she did not know or could not say. This was a summary of her testimony. There were more than seventy pages of minutes, due in large part to the witness being evasive and non-responsive to the questions. It was obvious that she was not being truthful.

The Court by Order dated February 20, 2007 directed Ms. Brosius to appear and testify as to her knowledge of the marriage or financial transactions in view of Ms. Foldes' testimony that she had told Ms. Brosius of the marriage and that a fraud had been committed on the Court. This Order was appealed and the Appellate Division reversed on the ground that the attorney-client privilege had not been waived.[FN3] [FN4] No inference is drawn from her asserting the privilege. Ms. Brosius has appeared as her attorney only in the Article 81 proceeding and neither she nor her firm represented Ms. Foldes in any other capacity. The Order dated February 20, 2007 also stated that the Court was treating the dismissal motion by Ms. Foldes to the contempt proceeding as one for summary judgment and gave both sides an opportunity to furnish additional papers.

The motion insofar as it seeks to transfer the proceedings to the Surrogate's Court is denied. The alleged contempt took place in a proceeding before this Court. Apart from the fact that this Court has concurrent jurisdiction with the Surrogate's Court (NY Const, Art VI §7; see also Matter of Burns, 287 AD2d 862, 863 [3d Dept 2001] ["Supreme Court and Surrogate's Court having concurrent jurisdiction"]), this Court signed the Order containing the TRO, conducted the hearings and is familiar with the facts. Furthermore, the validity of the Will is not in issue, only the right of election. Transferring the issue as to the validity of the marriage to the Surrogate's Court for a hearing on the right of election would not be in the interest of judicial economy because the issue of Mr. Kaminester's lack of mental capacity is unrebutted.

Ms. Foldes, the contemnor, raises two defenses. First, the TRO had expired prior to the violations complained of, relying upon the injunction procedures in CPLR Article 63 and also as a result of the hearing of January 23, 2006. Second ". . .the TRO suffers from ambiguity, vagueness and indefiniteness since it does not prohibit any particularly defined conduct, does not define what constitutes an acceptance on the part of Inalee and does not define financial benefit.'" [*11]

Sec. 81.23 (2) M.H.L. is the controlling section [FN5] and provides for the issuance of a temporary restraining order. It states in part "[s]uch temporary restraining order shall neither be vacated nor modified except upon notice to the petitioner. . ." No notice was ever given to the petitioner nor was this issue raised.[FN6] Furthermore it is clear from the minutes of the January 23, 2006 hearing and the Interim Decision dated January 27, 2006 that the hearing was adjourned to a future date to resolve the open issues. The issue of the TRO and Ms. Foldes accepting funds or financial benefits was never raised by her attorney or considered by the Court nor had it expired by its own terms. Furthermore Ms. Brosius stipulated on April 3, 2006 that "all stays" were in effect. The stays clearly related to her client. The point is that the TRO insofar as it related to Ms. Foldes receiving funds or financial benefit was never contested. The hearing for interim relief which was directed to Ms. Foldes remaining in the apartment has never been held as clearly appears in the April 3, 2006 stipulation.

The stipulation entered into on April 3, 2006 resolved the remaining issues, except for Ms. Foldes residing in Mr. Kaminester's apartment and states that "all" stays were still in effect. The stipulation was entered into at the counsel table and all three attorneys were present when it was placed on the record. The argument advanced that Ms. Brosius was not a participant to the stipulation is incorrect as the minutes indicate. The stipulation provided that Mr. Kaminester did not have the capacity to marry. No objection was raised by Ms. Brosius. This stipulation, together with the undisputed medical evidence, clearly established that at the time of the marriage ceremony Mr. Kaminester did not have the capacity to marry or enter into contractual obligations.

The stipulation reads (April 3, 2006 transcript at p 11, line 4-9):

MR. SALZMAN:Other than there is an assurance of all stays will continue. . .

MS. BROSIUS:That is correct.

While Ms. Foldes argues that the TRO was not in effect at the time that she entered into the financial transactions, her counsel Ms. Brosius stipulated that it was.

The following facts are undisputed. Ms. Foldes was in the courtroom on April 3, 2006. A stipulation was placed on the record as to Mr. Kaminester's lack of mental capacity to marry or enter into contracts, there was a reference to Ms. Foldes as a girlfriend and not as Mrs. Kaminester, and most importantly Ms. Foldes had brought witnesses to testify as to the open issue of her remaining in the apartment. Since Ms. Foldes claims she was Mr. Kaminester's wife at that time, she would [*12]not need to bring witnesses to establish her right to stay in the apartment. Her testimony that she did not know what was going on in the courtroom, that she never said she was married because nobody asked her, and the fact that she claims she did not discuss what had taken place with Ms. Brosius or her private attorney after the hearing is incredible and unbelievable.

The second argument advanced that the language of the TRO was ambiguous, vague and indefinite requires only a limited response. The TRO speaks for itself as does the benefits and funds which admittedly Ms. Foldes has received.

The events of April 3, 2006 further establish that Ms. Foldes understood the terms of the TRO, that it was in full force and effect at the time of the violations and that she wilfully sought to hide the violations. Otherwise she would have contested the TRO on April 3, 2006. Recognizing that Mr. Kaminester would soon expire, she calculated that her chances for success would improve if the guardianship proceeding was concluded without reaching the issue of the marriage and financial transactions while he was alive.

Section 753 (A)(3) of the Judiciary Law provides in relevant part:

A.A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases...

3. ...for any other disobedience to a lawful mandate of the Court.

McCain v Dinkins (84 NY2d 216, 225-226 [1994]) states in part:

Civil contempt has as its aim the vindication of a private party to litigation and any sanction imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with the benefits of the mandate (Matter of McCormick v Axelrod, 59 NY2d 574, 583, supra ; State of New York v Unique Ideas, 44 NY2d 345.)

Although the line between the civil and criminal contempt may be difficult to draw in a given case and the same act may be punishable as both a civil and a criminal contempt, the element which escalates a contempt to criminal status is the level of willfulness associated with the conduct (Matter of McCormick v Axelrod, 59 NY2d 574, 583, supra )...

...To sustain a civil contempt, a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed (citations omitted). Moreover, the party to be held in contempt must have knowledge of the order, although it is not necessary that the order actually have been served upon the party (citations omitted). In addition, prejudice to the rights of a party to the litigation must be demonstrated (see, Judiciary Law § 753 [A]; Matter of McCormick v Axelrod, 59 NY2d 574, supra )... [*13]

"[W]illfullness is not an element of civil contempt" (Italian Am. Civic Assn. of Mineola, NY v Cataldo, 225 AD2d 733, 733-734 [2d Dept 1996]). "Contrary to the plaintiff's contentions, the Supreme Court properly adjudicated him in contempt. In order to sustain a finding of civil contempt, it is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights of a party' (Jim Walter Doors v. Greenberg, 151 AD2d 550, 551, 542 NYS2d 324; see Cannizzaro v. Cannizzaro, 186 AD2d 776, 588 NYS2d 912; Gordon v. Janover, 121 AD2d 599, 503 NYS2d 860)" (Hinkson v. Daughtry-Hinkson, 31 AD3d 608, 608 [2d Dept 2006]).

Inalee Foldes is guilty of civil contempt. The Court finds that she had knowledge of the TRO; that it was in effect at the time of the disobedience, neither having expired by its own terms nor court order; that it was clear, unequivocal and lawful; and that it impaired, prejudiced and deprived the petitioner of a substantive right (see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 686 [2d Dept 2007]). The monetary deprivation to the petitioner is obvious.

The civil contemnor Inalee Folder is fined in an amount sufficient to compensate the petitioner and her brother for any loss caused by Ms. Foldes violating the TRO which shall include but not be limited to the value of their interests in the Westhampton property which was transferred, the value of the life insurance policy and all attorneys fees incurred or to be incurred in this contempt proceeding and the proceedings in the Surrogate's Court and also the fees and expenses incurred to restore the status quo (Judiciary Law §753; §773). Since the amount cannot be determined at this time, this issue is referred to a Special Referee to hear and report (with recommendations). Pending receipt of the report and a motion pursuant to CPLR §4403, the final determination of the amount is held in abeyance. A copy of the Order with notice of entry shall be filed with the Motion Support Office-Room 119M, by Kimberly Kaminester for the purpose of obtaining a calendar date. The fine must be paid within one hundred and twenty (120) days after the report of the Special Referee is confirmed or the contemnor shall be imprisoned until payment is made.

Inalee Foldes is also guilty of criminal contempt. Section 750 of the Judiciary Law provides in relevant part that a person is guilty of criminal contempt for: 3. Willful disobedience to its lawful mandate. (Emphasis supplied).

Matter of Department of Envtl. Protection of City of NY v Department of Envtl. Conservation of State of NY (70 NY2d 233, 239-40 [1987]) states in part: ...Although the same act may be punishable as both a civil and a criminal contempt, the two types of contempt serve separate and distinct purposes. A civil contempt is one where the rights of an individual have been harmed by the contemnor's failure to obey a court order (citation omitted). Any penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate or both (citation omitted). A criminal contempt, on the other hand, involves an offense against judicial authority and is utilized to protect the [*14]integrity of the judicial process and to compel respect for its mandates (citation omitted). Unlike civil contempt, the aim in a criminal contempt proceeding is solely to punish the contemnor for disobeying a court order, the penalty imposed being punitive rather than compensatory (citation omitted).In keeping with a civil contempts' distinct purpose, it must be established that the rights of a party to the litigation have been prejudiced (citations omitted). In a criminal contempt proceeding, no such showing is needed since the right of the private parties to the litigation is not the controlling factor. A key distinguishing element between civil and criminal contempt is the degree of willfulness of the subject conduct. To be found guilty of criminal contempt, the contemnor usually must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding (citation omitted).

Inalee Foldes acted "with the requisite willfulness needed to sustain the extraordinary sanction of a criminal contempt" (Matter of Department of Envtl. Protection of City of NY v Department of Envtl. Conservation of State of NY, 70 NY2d at 241). In retrospect, her motive for denying the family access to Mr. Kaminester becomes clear. The willfulness of her conduct was further established by her conduct subsequent to the violations. She remained silent as to her marriage by failing to assert her marital rights in the apartment. She brought witnesses in a deliberate effort to conceal the marriage. She deliberately concealed the financial transactions and marriage from the Court at the April 3, 2006 hearing. She made no objections when the stipulation regarding the marriage was entered into or the stays extended. Her silence shows a consciousness of guilt when she had a duty to speak. Her silence and conduct, like a defendant in a criminal case (which this is not) who subsequently disguises himself or flees the jurisdiction, is circumstantial evidence of guilt. She had an opportunity to explain her silence at the contempt hearing but gave false, evasive and incredible testimony. She was well represented with two lawyers at the April 3, 2006 hearing and three lawyers at the contempt hearing. Her conduct was willful and deliberate.

Inalee Foldes is fined $1,000.00 (one thousand dollars) or imprisoned for ten (10) days upon her failure topurge within thirty (30) days of personal service of a copy of this Order upon her for criminal contempt (Judiciary Law §750(3); §751).

Apart from violating the TRO, there are alternative bases for voiding the marriage and financial transactions. "[A] Supreme Court Justice is vested with inherent plenary power [citation omitted] to fashion any remedy necessary for the administration of justice" (Cane v Herman, 209 AD2d 368, 368 [1st Dept 1994], quoting People ex rel. Doe v Beaudoin, 102 AD2d 359, 363 [3d Dept 1984]). While objections were raised on procedural grounds such as standing (see Matter of [Marie H.] St.Luke-Roosevelt Hosp. Center, 261 AD2d 320 [1st Dept 1999]), the Court is not bound by the form of the proceeding (CPLR §103[c]) where all parties are before it (see Byer's Civil Motions §1:02, at 1 [Leventhal 2d rev ed]; Guzman v 188-190 HDFC, 37 AD3d 295 [1st Dept 2007], lv denied 9 NY3d 801 [2007]). The petitioner and her brother are the two people whose rights have been impaired. Where the facts are undisputed and pure questions of law are presented, a declaratory[*15]judgment is appropriate (Byer's Civil Motions §21:01, at 236-237 [Leventhal 2d rev ed];see also Diemer v Diemer, 8 NY2d 206, 212 [1960]["It is enough now that a pleader state the facts making out a cause of action, and it matters not whether he gives a name to the cause of action at all or even that he gives a wrong name"]). "[I]n an action for declaratory judgment, the court has an exceedingly broad discretion in deciding the issues" (Timothy Daley v. M/S Capital NYLLC, NYLJ, Oct. 4, 2007 at 32, col 6 [App Div 1st Dept], quoting Cahill v Regan, 5 NY2d 292, 298 [1959]).

"In light of the presumption of competency, the burden of proving mental incompetence is upon the party asserting it (citations omitted). However, where there is medical evidence of mental illness or a mental defect, the burden shifts to the opposing party to prove by clear and convincing evidence that the person executing the document in question possessed the requisite mental capacity" (Matter of Rose S., 293 AD2d 619, 620 [2d Dept 2002]). Based upon the uncontraverted medical evidence, the judgment of the Texas court, the report of the Court Evaluator, this Court's judgment and the stipulation of April 3, 2006, the Court declares pursuant to CPLR §3017 that Richard Kaminester lacked the mental capacity to marry (Matter of Dot E.W. [Johnson], 172 Misc 2d 684, 693 [Sup Ct, Suffolk Cty 1997, Prudenti, J.]) or enter into the contracts or other financial arrangements in issue.Therefore they are declared void.

There is a third basis for voiding the marriage and financial transactions. MHL §81.29(d)

authorizes the Court to "modify, amend, or revoke...any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated..." Richard Kaminester was incapacitated when the change of beneficiary in the life insurance policy was made, the marriage to Inalee Foldes took place and at the time of the changes to the deed to the Westhampton property. They are revoked and voided.

Additionally pursuant to MHL §81.29(c) all of Richard Kaminester's property became subject to the "control of the court for purposes of administrative, sale or disposition" after this Court found that Richard Kaminester required a Guardian of the Property. Strict limitations are placed upon a transfer of an incapacitated person's property (MHL §81.21).

The caption is amended to add Kimberly Kaminester as Executrix of the Estate of Richard Kaminester as a party plaintiff. All stays remain in effect.

This Decision constitutes the Judgment and Order of the Court.

Date: October 19, 2007

______________________________ [*16]

William P. McCooe, J.S.C. Footnotes

Footnote 1:The report is dated March 14, 2006.

Footnote 2: "All stays will continue" clearly refers to the TRO.

Footnote 3: (In re Kimberly Kaminester v Inalee Foldes, NYLJ, Sept. 24, 2007, at 29, col. 4 [App Div 1st Dept])

Footnote 4:Ms. Foldes apparently is not claiming that she relied on Ms. Brosius' legal advice regarding nondisclosure of the marriage. Therefore the issue of "waiver by affirmative reliance" is not relevant (see Martin, Capra and Rossi, New York Evidence Handbook, Waiver of Affirmative Reliance §5.1.6 at 299 [2nd ed]).

Footnote 5:CPLR §101 provides that the CPLR governs "except where the procedure is regulated by inconsistent statute..."; see also Matter of Devine, 126 AD2d 491 [1st Dept 1987]; SCPA; RPAPL.

Footnote 6:Assuming that CPLR Article 63 applies and that procedural or technical objections existed, they were waived by a failure to raise them.