Matter of Dunk (Albert)
Annotate this CaseDecided on December 12, 2013
Sur Ct, Dutchess County
In the Matter of the First and Final Accounting of Paul Dunk and PETER DUNK, as Executors of the Estate of METTHÉ DUNK, Deceased Executor, and the First Intermediate Accounting of Proceedings of RICHARD V. CORBALLY, as Executor, and PAUL DUNK, as Successor Executor, of the Estate of DONALD ALBERT, Deceased.
95907/07/F
ELIZABETH M. WOLF, ESQ.
WOLF & WOLF, ESQS.
Attorneys for the Estate of DONALD ALBERT
35 Market Street
Poughkeepsie, New York 12601
STEPHEN C.F. DIAMOND, ESQ.
TEAHAN & CONSTANTINO, LLP
Trial Counsel for the Executors
41 Front Street, Suite A
P.O. Box 1181
Millbrook, New York 12545
FRANK W. STRENG, ESQ.
McCARTHY FINGAR LLP
Attorneys for the Objectant
ELIZABETH A. ALBERT
11 Martine Avenue, 12th Floor
White Plains, New York 10606
HARRY W. LIPMAN, ESQ.
ROTTENBERG, LIPMAN, RICH, P.C.
Attorneys for PETER AND PAUL DUNK
369 Lexington Avenue, 16th Floor
New York, New York 10017
CHARLES T. SCOTT, ESQ.
GREENFIELD, STEIN & SENIOR, LLP
Attorneys for SIDNEY D. WEXLER
600 Third Avenue
New York, New York 10016
KENNETH M. BERNSTEIN, ESQ.
Referee
186 Roosevelt Road
Hyde Park, New York 12538
James D. Pagones, J.
The objectant, Elizabeth Albert, moves for an order, pursuant to SCPA §506(4) vacating the decisions of the court dated August 30, 2013, September 23, 2013 and October 4, 2013. The objectant also seeks an order, pursuant to 22 NYCRR §100.2, for the recusal of this court on any subsequent motion concerning confirmation or rejection of the referee's report.
The following papers were read:
Notice of Motion-Affidavit-Exhibits 1-13
Affirmation-Affidavit of Service(2)-Exhibits A-B
Reply Affidavit-Exhibit A-Affidavit of Service
By way of procedural background, the referee's report was rendered on August 26, 2013. This court on its own motion confirmed the referee's report via a decision dated August 30, 2013. An amended referee's report was rendered on September 19, 2013. A further amended decision was issued by the court, which confirmed the amended referee's report on September 23, 2013. The court then issued a second amended decision dated October 4, 2013.
Objectant alleges that the confirmation of the referee's reports, without allowing the objectant an opportunity to be heard, violates the principles of due process and thus, requires vacatur of the three (3) decisions confirming the reports of Kenneth M. Bernstein. SCPA §506(4) provides: "Upon the motion of any party or on its own initiative the court may confirm or reject in whole or in part the report of the referee; may make new findings with or without taking additional testimony or may order a new reference. Any party to the proceeding may serve notice of the filing of the report. Unless the motion be made within 60 days after service of notice of the filing of the report, it shall be deemed confirmed. Where no issues remain to be tried the court shall file its decision in writing."
Counsel argues that this court acted in error by confirming the report of the referee without first allowing the objectant [*2]the opportunity to be heard. This argument is simply not supported by the above referenced section of the Surrogate Court Procedure Act. The actions cited in support of the objectant's motion are easily distinguishable from the within matter. The case of Wilder v. Wilder, 55 AD3d 1341 (4th Dept 2008) reargument denied by 57 AD3d 1531, involved a Family Court proceeding, wherein, the court adopted the report of a judicial hearing officer without providing the mother with notice of the filing of the report or an opportunity to object to it. The Fourth Department relying upon the Uniform Civil Rules for the Supreme Court and County Court, specifically Section 202.44 thereof, found that the court had erred by adopting the report of the JHO. 22 NYCRR §202.44, unlike SCPA §506(4), specifically provides that: "...the plaintiff shall move on notice to confirm or reject all or part of the report within 15 days after notice of such filing was given. If plaintiff fails to make the motion, the defendant shall so move within 30 days after notice of such filing was given...If no party moves as specified above, the court, on its own motion, shall issue its determination."
SCPA §506(4) does not provide the parties with an opportunity to move to confirm or reject the report prior to the court acting, rather, it states "on its own initiative the court may confirm or reject in whole or in part the report of the referee" (SCPA §506[4]).
The objectant next relies upon Jones v. Jones, 30 AD3d 741 (3rd Dept 2006), wherein the Third Department found that the Supreme Court had erred by adopting the findings of a judicial hearing officer without providing the defendant an opportunity to object. Again, the court relied upon 22 NYCRR §202.44(a) when deciding that the Supreme Court had erred. As stated above 22 NYCRR §202.44(a), specifically provides that the parties be given an opportunity to be heard prior to confirmation of the report, which the relevant SCPA section does not.
The objectant next cites to Sidoti v. Degliuomini, 10 AD3d 396 (2nd Dept 2004), wherein the Appellate Division held that the Supreme Court erred in adopting the report of a referee, who was assigned to hear and report on various disclosure issues, prior to the expiration of the 15-day period during which the parties were permitted to move to confirm or reject the report in whole or in part. Therein, the Second Department relied upon CPLR 4403 which provides, the parties or the court fifteen days to make a motion to confirm or reject a report, and thus, when the Supreme Court confirmed a report prior to the expiration of the fifteen days, the Appellate Division found this to be an error. Here, SCPA provides no time frame for which this court must hold in [*3]abeyance its confirmation of the report.
Finally, the objectant puts forth the case of Caplan v. Winslett, 218 AD2d 148 (1st Dept 1996), which found that "Since there was no motion to confirm the report of the Special Master (CPLR 4403), plaintiff was denied any opportunity to file objections thereto." As stated above, CPLR 4403 is clearly distinguishable from SCPA §506(4), as it lacks a time frame in which the court is mandated to wait prior to the confirmation of a report.
Accordingly, the branch of the motion which seeks vacatur of the underlying decisions confirming the referee's report pursuant to SCPA §506(4) is denied.
Next objectant's seeks recusal of this court pursuant to 22 NYCRR §100.2. Section 100.2 provides: "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities(A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.(B) A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.(C) A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.(D) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of age, race, creed, color, sex, sexual orientation, religion, national origin, disability or marital status. This provision does not prohibit a judge from holding membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members."
Objectant alleges that this court should recuse itself from consideration of any motion concerning the referee's report. Objectant states that recusal would be proper as: (1) Kenneth M. Bernstein, Esq. was employed as this court's principal court attorney for the period of 12 years and worked on this matter; and (2) that this court exercised poor judgment in appointing Mr. Bernstein as referee.
By Joint Opinion 10-107/10-158 the Advisory Committee on Judicial Ethics found that "the judge in Inquiry 10-107 is not [*4]restricted from appointing his/her former law clerk to serve as a referee to hear and report findings of fact and conclusions of law pursuant to SCPA 506 or as a referee to supervise disclosure pursuant to CPLR 3104(a) once his/her law clerk retires, as long as his/her law clerk is otherwise eligible and qualified for such appointment. And, as these appointments are quasi-judicial in nature, the judge is not required to disclose their former employment relationship." Accordingly, pursuant the joint opinion of the Advisory Committee on Judicial Ethics and the SCPA, the appointment of Mr. Bernstein was wholly proper.
Counsel for the objectant also alleges that as Mr. Bernstein previously worked on this matter, in his role as this court's principal court attorney, and therefore, he should have been barred from being appointed referee. Even assuming arguendo that Mr. Bernstein's appointment was made pursuant to 22 NYCRR Part 36, Mr. Bernstein would be exempt from the Part 36 requirements (i.e. that he not be appointed to a case which was pending before the judge during his term of employment [NY Jud Adv Op 10-107, 10-158]), pursuant to Section 36.1(a)(9) of Part of the Rules of the Chief Judge, as he was acting in a quasi-judicial capacity.
The objectant's remaining contentions, including any substantive issues with the confirmed findings of the referee, are without merit and will not be addressed by this court.Based upon the foregoing the objectant's motion is denied in its entirety.
This constitutes the decision of this Court. The proposed decree is signed contemporaneously herewith.
Dated:December 12, 2013
Poughkeepsie, New York
ENTER
____________________________________
HON. JAMES D. PAGONES, S.C.J.
121213 decision
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