Becher v Feller

[*1] Becher v Feller 2008 NY Slip Op 52529(U) [21 Misc 3d 1147(A)] Decided on December 19, 2008 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2008
Supreme Court, Kings County

Razill Cynthia Becher, as Guardian ad Litem on behalf of MARTIN UNGAR; and, CHANA UNGAR, individually, and as mother and natural guardian of YITTA UNGAR, TZVI UNGAR, SHIFRA UNGAR, MOSHE UNGAR and DAVID UNGAR, infants under the age of eighteen years, all in their individual capacities, and, derivatively, as beneficiaries under THE MAZEL GUARANTY TRUST, Plaintiffs,

against

Jacob Feller, JULIAN FRANKEL, UZIEL FRANKEL, FAIRMONT FUNDING, LTD., and "JOHN DOES" 1-10, the latter being individuals, firms or entities claiming to have any right, title or interest in premises 1941 51st Street (Block 5462, Lot 66), Brooklyn, NY, Defendants, and, Meir Weisz, NECHAMA WEISZ, and THE MAZEL GUARANTY TRUST, Relief Defendants.



19207/07



Plaintiff:

Solomon E Antar, Esq.

Brooklyn NY

Defendant - Jacob Feller

Avrom R Vann

NY NY UZIEL FRANKEL

Defendant, pro se

Brooklyn NY

Defendant Julian Frankel

Dollinger Gonski & Grossman

Carle Place NY

Defendants Weisz

Martin J Birn, Esq

NY NY

Arthur M. Schack, J.

As a result of my May 29, 2008 decision and order in the instant matter (19 Misc

3d 1138 [A]), six motions or orders to show case are now before the Court for decision. Oral arguments on these six motions or orders to show cause were held on December 16, 2008 for approximately three hours. The six motions or orders to show cause are:

1. The July 21, 2008 motion of plaintiffs to quash a subponea duces tecum issued by defendant JACOB FELLER (FELLER) to the New York City Housing Authority, and for a protective order against FELLER's discovery demands, pursuant to CPLR § 3103;

2. The August 14, 2008 cross-motion of defendant FELLER, pursuant to CPLR Rule 3120 and CPLR § 3126, for an order compelling the New York City Housing Authority to produce various documents for inspection and copying relating to Section 8 housing benefits of MARTIN UNGAR and/or CHANA UNGAR, and compelling relief defendant NECHAMA WEISZ (NECHAMA) to appear for a deposition before FELLER's attorney with written documents pertaining to the MAZEL GUARANTY TRUST (TRUST);

3. The August 15, 2008 cross-motion of defendant UZIEL FRANKEL (UZIEL) for a protective order against plaintiffs, pursuant to CPLR § 3103, in that plaintiff's document demands and information requests are irrelevant, excessive and abusive;

4. The September 25, 2008 cross-motion by plaintiffs to compel defendant UZIEL to comply with plaintiffs' demands for document production and interrogatories, or be sanctioned pursuant to CPLR § 3126;

5. The October 29, 2008 order to show cause of plaintiffs to: suppress the use of checks, bank statements and deposit information by defendant FELLER and defendant UZIEL in their attempts to

remove plaintiff RAZILL CYNTHIA BECHER (BECHER) asguardian ad litem of MARTIN UNGAR in a guardianship proceeding before the Honorable Bernadette F. Bayne, In the Matter of the Application of CHANA UNGAR for the appointment of a Guardian ad Litem on behalf of MARTIN UNGAR, an adult incapable of adequately prosecuting or defending his rights, Supreme Court, Kings County, Index Number 26300/06 (in which Justice Bayne, in her March 12, 2007 decision and order, appointed BECHER as guardian ad litem for the specific purpose of commencing and maintaining the instant action, after holding that she was "satisfied as to the [*2]allegations of the petition, and [i]t appearing that MARTIN UNGAR is an adult who is incapable of adequately prosecuting or defending his rights"); and, to compel defendant FELLER to account for all charges made to the TRUST after his removal as Trustee by my May 29, 2008 decision and order, reimburse the TRUST for all charges made by FELLER after his removal as Trustee, and to surrender the checkbook and all other Trust records in his possession to GREGORY M. LA SPINA, ESQ., the new Trustee appointed

by myself; and

6. The December 9, 2008 cross-motion of defendant UZIEL to disqualify plaintiffs' counsel, SOLOMON E. ANTAR, ESQ. (ANTAR), because he is a necessary witness needed by defendant UZIEL to defend himself in this action.

Further, defendant JULIAN FRANKEL (JULIAN), in his counsel's affirmation in opposition, dated October 3, 2008, seeks a protective order for plaintiffs to comply with JULIAN's August 30, 2008 notice for discovery and inspection.

After hearing oral arguments on December 16, 2008 and reviewing all the papers filed with the Court, the Court makes the following findings of fact and conclusions of law.

Plaintiffs' July 21, 2008 motion to quash the subponea duces tecum issued by defendant FELLER to the New York City Housing Authority, and for a protective order against FELLER's discovery demands, pursuant to CPLR § 3103, is granted. The information sought by FELLER is not germane to the issues in the instant action - the December 31, 2003 change of the TRUST's Trustee and the real estate conveyances involving the premises at 1941 51st Street, Brooklyn, New York. Further, the Court prohibits all defendants from any discovery involving: Family Court records and proceedings involving MARTIN UNGAR, CHANA UNGAR, and their children; financial records, income tax returns, W-2 statements, 1099 statements, etc. of MARTIN UNGAR and CHANA UNGAR; any type of governmental benefits received by the UNGAR family, including Social Security benefits and disability benefits. With respect to defendant JULIAN's August 30, 2008 notice for discovery and inspection from plaintiffs, the demand for documents numbered, 2, 3, 9, 15, 16, and 28 are stricken. Plaintiffs will comply with providing to JULIAN the demand for documents numbered 1, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27.

That branch of defendant FELLER'S August 14, 2008 cross-motion to compel the New York City Housing Authority to produce documents is denied. The other branch of defendant FELLER's cross-motion to depose relief defendant NECHAMA is granted.

The August 15, 2008 cross-motion of defendant UZIEL for a protective order is denied.

The September 25, 2008 cross-motion by plaintiffs to compel defendant UZIEL to comply with plaintiffs' demands for document production and interrogatories is granted to the extent that defendant UZIEL must produce all documents demanded, except for demanded documents numbered 7 and 20, within sixty (days) after notice of entry of this decision and order is served by plaintiffs on UZIEL. The failure of defendant UZIEL to comply with this order will result in the automatic striking of UZIEL's answer, pursuant to CPLR § 3126.

The October 29, 2008 order to show cause of plaintiffs is granted. Defendants FELLER and UZIEL may not use any checks, bank statements and deposit information with respect to the TRUST's bank account, that were illegally obtained after FELLER's removal by this Court as Trustee, in their attempts to remove BECHER asguardian ad litem of MARTIN UNGAR in the [*3]guardianship proceeding before the Honorable Bernadette F. Bayne (In the Matter of the Application of CHANA UNGAR for the appointment of a Guardian ad Litem on behalf of MARTIN UNGAR, an adult incapable ofadequately prosecuting or defending his rights, Supreme Court, Kings County, Index Number 26300/06). Defendant FELLER must: render forthwith an accounting of all charges made to the TRUST by him after his removal as Trustee; surrender the TRUST's checkbook and all related TRUST items and documents in his possession to the new Trustee, GREGORY M. LA SPINA, ESQ.; and, reimburse the TRUST $960.00 for illegally duplicating 160 pages of bank documents at $6.00 per document.

The December 9, 2008 cross-motion of defendant UZIEL to disqualify ANTAR as counsel for plaintiffs is denied. Defendant UZIEL claims, in ¶ 16 in his affirmation in support of the cross-motion, that "it is essential that Solomon E. Antar give testimony as a witness in this case," because ANTAR claimed, in ¶ 1 of ANTAR's affirmation in opposition to JULIAN's motion for summary judgment and in support of his cross-motion that resulted in my May 29, 2008, that "I have personal knowledge of the facts upon which this affirmation is made." The facts were obtained by ANTAR after he examined the voluminous documents in the instant action and spoke to the plaintiffs, not from being an eyewitness to the events that ANTAR described in the amended complaint. UZIEL admits that ANTAR is not a witness, in ¶ 18 of his affirmation in support of the cross-motion, stating that "[a]ccording to the deliberately perjured statements of lawyer Solomon E. Antar, Martin Ungar is a mental incompetent and unable to testify." However, UZIEL overlooked Justice Bayne's March 12, 2007 order finding MARTIN UNGAR to be an incompetent. UZIEL further states, in ¶ 18, that none of the plaintiffs, other than MARTIN UNGAR, had any personal knowledge to FELLER's appointment as Trustee of the TRUST, and the negotiations and sale of the subject property. Yet, he continues, in ¶ 19, that because "Solomon E. Antar has stated under oath that he has personal knowledge of the facts in this case . . . he must be called as a witness at the trial on behalf of defendants, or ought to be called to testify at trial on behalf of defendants." Then, in ¶ 20 and ¶ 21, he claims " I firmly believe that through a rigid examination of Antar as a witness, I will pry the truth out of him in my favor. Accordingly. Solomon E. Antar is disqualified from representing plaintiffs in this matter under the lawyer-witness' rule." However, in ¶ 40, in attacking ANTAR, UZIEL claims that ANTAR falsely claimed that he had personal knowledge of the facts in his affirmation. If ANTAR falsely claimed he had personal knowledge of the facts, then he is not a necessary witness.

It is clear that UZIEL's affirmation in support of his cross-motion is little more

than an extensive rant about numerous alleged misdeeds and nefarious activity by ANTAR for more than twenty years. Even if these accusations are true, they are not relevant to the instant action. Thus, ANTAR's testimony is not necessary. (Hudson Valley Marine, Inc. v Town of Cortlandt, 54 AD3d 999, 1000 [2d Dept 2008]). At the December 16, 2008 oral arguments, the Court noted that ANTAR according to the Office of Court Administration's attorney registry is currently a member in good standing of the New York Bar and has never been disciplined for any improprieties. Further, UZIEL does not present any specific facts about which ANTAR is a necessary witness. "The determination whether or not disqualification of an attorney is warranted is a mattercommitted to the sound discretion of the trial court. Disqualification is warranted if the [*4]attorney's testimony is necessary. The burden of demonstrating necessity falls upon the challenging party." (Bentvena v Edelman, 47 AD3d 651 [2d Dept 2008]). UZIEL's rant fails to demonstrate what specific necessary testimony can be elicited from ANTAR. Therefore, ANTAR will not be disqualified as a witness. (See Vuono v Interpharm Holdings, Inc., 55 AD3d 825 [2d Dept 2008]; Goldstein v Held, 52 AD3d 471, 472 [2d Dept 2008]).

Further, a court in determining if it will disqualify an attorney as a witness must, "in addition consider such factors as the party's valued right to choose it own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation." (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 440 [1987]). (See Advent Associates LLC v Vogt Family Investment Partners, 56 AD3d 1023 [3d Dept 2008]). It appears that UZIEL is attempting to abuse the "lawyer-witness" rule to punish plaintiffs in their choice of ANTAR as their attorney. A court in determining if it will disqualify an attorney as a witness must, "in addition consider such factors as the party's valued right to choose it own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation." (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., supra). (See Advent Associates LLC v Vogt Family Investment Partners, supra). This Court will not interfere with plaintiffs' right to a counsel of their choice merely because UZIEL alleges that ANTAR acted disreputably in past unrelated and irrelevant matters.

ANTAR, in his December 15, 2008 affirmation in opposition to UZIEL's cross-motion for his disqualification, seeks costs, sanctions, and attorneys' fees for UZIEL's having illegally obtained documents from sealed court files, in violation of Domestic Relations Law § 235. The Court grants UZIEL's request to file and serve on or before January 16, 2009 a reply to ANTAR's seeking of costs, sanctions, and attorney's fees.

Last, the Court requests that the parties argue in their motion papers about relevant issues in the instant action in a civil manner, without rancor and ill-will. For example, UZIEL accuses ANTAR, in ¶ 44 of his December 9, 2008 affirmation in support of his cross-motion, of resorting to "derogatory slurs" and "a negative mode." Then, in ¶ 54, he states that ANTAR, whom the Court has noted is a member in good standing of the New York Bar, is among other things, "an international smuggler, a forger, a producer of backdated Retainer Agreements, a perjurer, a promoter of fraud on the court, a scam artists and conspirer with scan artists, [and] a lawyer that is a disgrace to the legal profession." These outrageous accusations will no longer be tolerated by the Court. All parties are warned to cease and desist from character assassination in their court papers. Stick to the issues and facts.

Conclusion

Accordingly, it is

ORDERED that the motion of plaintiffs RAZILL CYNTHIA BECHER, as Guardian ad Litem on behalf of MARTIN UNGAR; and, CHANA UNGAR, individually, and as mother and natural guardian of YITTA UNGAR, TZVI UNGAR, SHIFRA UNGAR, MOSHE UNGAR and DAVID UNGAR, infants under the age of eighteen years, all in their individual capacities, and, derivatively, as beneficiaries under THE MAZEL GUARANTY TRUST, to quash the subponea duces tecum issued by defendant JACOB FELLER to the New York City Housing Authority, and [*5]for a protective order against defendant JACOB FELLER's discovery demands, pursuant to CPLR § 3103, is granted; and it is further

ORDERED, that plaintiffs RAZILL CYNTHIA BECHER, as Guardian ad Litem on behalf of MARTIN UNGAR; and, CHANA UNGAR, individually, and as mother and natural guardian of YITTA UNGAR, TZVI UNGAR, SHIFRA UNGAR, MOSHE UNGAR and DAVID UNGAR, infants under the age of eighteen years, all in their individual capacities, and, derivatively, as beneficiaries under THE MAZEL GUARANTY TRUST, shall comply with defendant JULIAN FRANKEL's August 30, 2008 notice for discovery and inspection to the extent that plaintiffs will provide defendant JULIAN FRANKEL with the documents demanded numbered 1, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27, and the documents demanded numbered 2, 3, 9, 15, 16 and 28 are stricken; and it is further

ORDERED, that branch of defendant JACOB FELLER's cross-motion to compel the New York City Housing Authority to produce documents is denied; and it is further

ORDERED, that branch of defendant JACOB FELLER's cross-motion to depose relief defendant NECHAMA WEISZ is granted; and is further

ORDERED, that the cross-motion of defendant UZIEL FRANKEL for a protective order is denied; and it is further

ORDERED, that the cross-motion of plaintiffs RAZILL CYNTHIA BECHER, as Guardian ad Litem on behalf of MARTIN UNGAR; and, CHANA UNGAR, individually, and as mother and natural guardian of YITTA UNGAR, TZVI UNGAR, SHIFRA UNGAR, MOSHE UNGAR and DAVID UNGAR, infants under the age of eighteen years, all in their individual capacities, and, derivatively, as beneficiaries under THE MAZEL GUARANTY TRUST, to compel defendant UZIEL FRANKEL to comply with plaintiffs' demands for document production and interrogatories is granted to the extent that defendant UZIEL FRANKEL must produce all documents demanded, except for demanded documents numbered 7 and 20, within sixty (days) after notice of entry of this decision and order is served by plaintiffs on UZIEL FRANKEL, and the failure of defendant UZIEL FRANKEL to comply with this order will result in the automatic striking of defendant UZIEL FRANKEL's answer, pursuant to CPLR § 3126; and it is further

ORDERED, that the order to show cause of plaintiffs RAZILL CYNTHIA BECHER, as Guardian ad Litem on behalf of MARTIN UNGAR; and, CHANA UNGAR, individually, and as mother and natural guardian of YITTA UNGAR, TZVI UNGAR, SHIFRA UNGAR, MOSHE UNGAR and DAVID UNGAR, infants under the age of eighteen years, all in their individual capacities, and, derivatively, as beneficiaries under THE MAZEL GUARANTY TRUST, to prohibit defendants JACOB FELLER and UZIEL FRANKEL from using any checks, bank statements and deposit information with respect to the MAZEL GUARANTY TRUST's bank account, that were obtained after JACOB FELLER's removal by this Court as Trustee of the MAZEL GUARANTY TRUST, in any attempts to remove RAZILL CYNTHIA BECHER asguardian ad litem of MARTIN UNGAR in the guardianship proceeding before the Honorable Bernadette F. Bayne(In the Matter of the Application of CHANA UNGAR for the appointment of a Guardian ad Litem on behalf of MARTIN UNGAR, an adult incapable of adequately prosecuting or defending his rights, Supreme Court, Kings County, Index Number 26300/06), and to have defendant JACOB FELLER: render forthwith an accounting of all charges made to the MAZEL GUARANTY TRUST by JACOB FELLER after his removal as Trustee of the [*6]MAZEL GUARANTY TRUST; surrender the MAZEL GUARANTY TRUST's checkbook and all related MAZEL GUARANTY TRUST items and documents in his possession to the new Trustee, GREGORY M. LA SPINA, ESQ.; and, reimburse the MAZEL GUARANTY TRUST $960.00 for illegally duplicating 160 pages of bank documents at $6.00 per document, is granted; and it is further,

ORDERED, that the coss-motion of defendant UZIEL FRANKEL to disqualify SOLOMON E. ANTAR, ESQ. as counsel for plaintiffs is denied; and it is further

ORDERED, that defendant UZIEL FRANKEL is granted leave to file and serve a reply on or before January 16, 2009 to SOLOMON E. ANTAR, ESQ.'s seeking of costs, sanctions, and attorney's fees from defendant UZIEL FRANKEL for UZIEL FRANKEL's alleged violations of Domestic Relations Law § 235.

This constitutes the Decision and Order of the Court.

ENTER

__________________________

Hon. Arthur M. Schack

J. S. C.