Behan v Behan

[*1] Behan v Behan 2019 NY Slip Op 51903(U) Decided on November 27, 2019 Supreme Court, Suffolk County Berland, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2019
Supreme Court, Suffolk County

Steven Behan, Plaintiff,

against

Veronica Helena Behan and Anne Hoffman, Defendants.



10-45442



PLAINTIFF'S ATTORNEY:

RICHARD A. KRASNOW, P.C.

425 BROADHOLLOW ROAD

SUITE 206

MELVILLE, NY 11747

DEFENDANTS' ATTORNEYS:

GAYLE A. MANDARO, ESQ.

Attorneys for defendant Anne Hoffman

400 TOWNLINE ROAD, STE 100

HAUPPAUGE, NY 11788

MCCARTHY & CARBONE, P.C.

Attorneys for defendant Helena Behan

400 TOWNLINE ROAD, STE 100

HAUPPAUGE, NY 11788
Sanford Neil Berland, J.

Upon the reading and filing of the following papers in this matter: (1) Order to Show Cause, by plaintiff, dated September 30, 2019, and supporting papers it is

[*2]ORDEREDthat plaintiff's motion, brought on by order to show cause, seeking an Order punishing nonparty witness Laurie Widercrantz for contempt of court for failing to comply with a subpoena duces tecum, is denied; and it is further

ORDERED,that counsel for the parties shall appear before the undersigned, at One Court Street, Part 6, Riverhead, New York on December 4, 2019, at 9:30 a.m., for a previously scheduled compliance conference; and it is further

ORDERED that plaintiff shall serve a copy of this Order, with notice of entry, upon nonparty Laurie Widercrantz pursuant to CPLR § 308 within ten (10) days of the date of this Order and shall promptly thereafter file an affidavit of service of same.

The current action was commenced after defendant Helena Behan ceased making certain installment payments that were due her former husband, plaintiff Steven Behan, under the terms of the stipulation of settlement in their divorce action and then, after plaintiff Behan accelerated her payment obligation and sought the transfer to himself of the full asset securing it — Helena Behan's interest in Kelron Lounge, Inc., a tavern operator ("Kelron") — represented to the court in the divorce proceeding and presented documents showing that she no longer held any interest in Kelron, having been forced by economic circumstances to transfer her interest to the co-owner of Kelron, defendant Anne Hoffman, for $10,000 [FN1] . Steven Behan alleges that as a result of his former wife's conduct, his application in the divorce action to compel the transfer of her interest in Kelron to him was unsuccessful [FN2] . He brought the current action against both Helena and Hoffman, seeking to set aside the transfer of Helena Behan's interest in Kelron to Hoffman and to recover damages for the allegedly fraudulent conveyance, but he also alleged both that Helena had transferred only a portion of her interest in Kelron to Hoffman and that she had "retained all rights and benefits of her 50% ownership interest in [Kelron] after the Conveyance."[FN3] After [*3]conducting a framed issue hearing at the request of the parties, Justice Asher found that as of the date the current action was commenced, December 28, 2010, Helena Behan did not own any interest in Kelron. In a series of subsequent determinations, Justice Asher, among other things, dismissed the claims against Hoffman, struck the action from the compliance calendar, denied plaintiff's motion to restore the action and proceed to trial on his fraudulent conveyance claim, and then found that there had been no fraudulent conveyance and dismissed the action, but the Appellate Division reversed those determinations, holding that the motion to restore the action to the calendar and to proceed to trial on the issue of whether or not the transfer of Behan's interest in Kelron to Hoffman was fraudulent should have been granted, as there was no procedural basis for marking the action off the calendar, and that the sua sponte dismissals of the complaint as against each defendant on the grounds that all of the issues in the case had been addressed and decided in the framed-issue hearing and that "there is no fraudulent conveyance whatsoever," was contrary to the express limitation of the framed-issue hearing (Behan v. Behan, 145 AD3d 653 (2d Dept 2016)).

The matter is now before the court on plaintiff's application, brought on by order to show cause, for an order, pursuant to Sections 750, 751, 753A[3][sic] and 756 of the Judiciary Law, punishing a non-party witness, Laurie Widercrantz, for contempt of court for allegedly willfully failing to comply with the terms and provisions of a subpoena duces tecum issued by plaintiff's counsel, dated August 1, 2019, and served upon Ms. Widercrantz on August 14, 2019. As appears from plaintiff's submission, Ms. Widercrantz, who is an independent sales representative for several insurance companies and was involved in the procuring certain life insurance policies for the defendants, appeared and testified in response to the subpoena duces tecum on the date specified in the subpoena duces tecum, August 27, and brought with her a file containing the materials that it called for, concerning a certain insurance policy - or insurance policies - that had been issued to Helena Behan by the Companion Life Insurance Company or Mutual of Omaha. The transcript of Ms. Widercrantz's deposition taken pursuant to the subpoena duces tecum, a copy of which is included in plaintiff's submission, shows, further, that Ms. Widercrantz made her file available for inspection by plaintiff's counsel at the time of her deposition, that it was catalogued at Widercrantz's deposition and portions were marked as Exhibits 2 through 12 to the deposition, and that it was not then copied because plaintiff's counsel did not "think [his]is secretary ha[d] time to devote" to copying it then and rejected Ms. DeFrantz's offer to operate his copying machine herself. Ms. Widercrantz was unwilling to leave her original file with plaintiff's counsel, and she and plaintiff's counsel agreed that she would take her file with her and send a copy of it to him "no later than this Friday," that is, August 30th. According to plaintiff's counsel, Ms. Widercrantz failed to do so and failed to respond to a letter he sent to her, dated September 17, 2019, among other things reminding her of her agreement to provide him with a copy of her office file "maintained on behalf of Veronica Helena Behan" by August 30, 2019. The current application followed. It was originally returnable on October 29, 2019, at which time, plaintiff's counsel informed the court at a compliance conference held on the same date, that Ms. Widercrantz had appeared and had provided him a copy of the requested file. Plaintiff's counsel advised the court that notwithstanding Ms. Widercrantz having provided the copy of her file to him, plaintiff was maintaining his application for imposition of compensatory contempt sanctions. Accordingly, the application was adjourned.

Neither the subpoena duces tecum issued by plaintiff's counsel nor the corresponding notice of Ms. Widercrantz's deposition served by him stated the "reason such disclosure [from Ms. DeFrantz was] sought or required" (compare CPLR 3101[a][4]). However, plaintiff's counsel now affirms, in support of the contempt application against Ms. Widercrantz, that the subpoena duces tecum was served upon Ms. Widecrantz [i]n an effort to disaffirm the allegations of" defendant Helena Behan "[i]n opposition to the instant action" that she "no longer possessed her undivided fifty (50%) interest in Kelron . . . as of the Commencement Date,"[FN4] that is, December 28, 2010.

Pursuant to Subsection [A][3] of Judiciary Law § 753 — "Power of courts to punish for civil contempts" - the substantive provision upon plaintiff's application for compensatory relief is based [FN5] :

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. A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court.

(See Reuters Ltd. v Dow Jones Telerate, Inc., 231 AD2d 337, 341 [1st Dept 1997].) "'The aim of civil contempt is to vindicate a party's right to the benefits of a judicial mandate or to [*4]compensate that party for the interference by the contemnor" (Matter of Banks v. Stanford, 159 AD3d 134, 140, 71 N.Y.S.3d 515; see Matter of McCormick v. Axelrod, 59 NY2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508; Spencer v. Spencer, 159 AD3d 174, 177, 71 N.Y.S.3d 154). To support a finding of civil contempt, first, there must be a lawful order of the court in effect clearly expressing an unequivocal mandate. Second, it must appear with reasonable certainty that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order. Fourth, the violation of the court's order must be shown to impede, impair, or prejudice the rights of another party (see Matter of McCormick v. Axelrod, 59 NY2d at 583, 466 N.Y.S.2d 279, 453 N.E.2d 508, amended on other grounds 60 NY2d 652, 467 N.Y.S.2d 571, 454 N.E.2d 1314; Matter of Banks v. Stanford, 159 AD3d at 140, 71 N.Y.S.3d 515; see also Judiciary Law § 753[A][3]; El—Dehdan v. El—Dehdan, 26 NY3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340; McCain v. Dinkins, 84 NY2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132). "Once the movant makes the required showing, the burden shifts to the alleged contemnor to refute that showing, or to offer evidence of a defense such as an inability to comply with the order" (Matter of Mendoza—Pautrat v. Razdan, 160 AD3d 963, 964, 74 N.Y.S.3d 626; see El—Dehdan v. El—Dehdan, 26 NY3d at 35, 19 N.Y.S.3d 475, 41 N.E.3d 340). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence" (Louzoun v. Montalto, 162 AD3d 1004, 1005, 80 N.Y.S.3d 154, quoting Savel v. Savel, 153 AD3d 872, 873, 61 N.Y.S.3d 97)

(Ferrante v Stanford, 172 AD3d 31, 36 [2d Dept 2019]). Further, "[U]nlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award (e.g., Matter of Katz v. Murtagh, 28 NY2d 234, 321 N.Y.S.2d 104, 269 N.E.2d 816; cf., Nye v. United States, 313 U.S. 33, 42—43, 61 S. Ct. 810, 812—13, 85 L.Ed. 1172), civil contempt fines must be remedial in nature and effect (Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L.Ed. 797). The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants."

(Dept. of Hous. Preserv. and Dev. of City of New York v Deka Realty Corp., 208 AD2d 37, 43 [2d Dept 1995], quoting State of New York v. Unique Ideas, 44 NY2d 345, 349[1978]; see Judiciary Law § 773.)

Here, it is evident that plaintiff cannot make the requisite showing. Quite apart from the fact that the subpoena duces tecum to, and the notice of the deposition of, Ms. Widercrantz, a nonparty to this action, were "facially defective and subject to being quashed because [they] neither contained nor [were] accompanied by an affirmation setting forth the language mandated by CPLR 3101(a)(4)" (Needleman v Tornheim, 88 AD3d 773, 774 [2d Dept 2011]), it is undisputed that Ms. Widercrantz appeared and gave testimony on the date and time called and bought with her, and allowed counsel to inspect and to use at her deposition, the materials that the subpoena required and also made those materials available for photocopying by plaintiff's counsel at that time, going so far as offering to operate the copying machine herself. As appears from the record, it was only as a matter of his own convenience, or that of his staff, that [*5]plaintiff's counsel failed to obtain a copy of Ms. Widercrantz's original materials at the time they were first proffered to him for that purpose and in accordance with the stated command of the subpoena duces tecum that he had issued. That Ms. Widercrantz gratuitously offered, nonetheless, independently, and apparently at her own expense, to provide a copy of her responsive materials to plaintiff's counsel but then did so beyond the agreed time, does not render her conduct, however irritating it may have been to plaintiff's counsel, contumacious (see, e.g., Palmitesta v Palmitesta, 166 AD3d 782, 783 [2d Dept 2018]); In re Peer, 50 AD3d 1511, 1512 [4th Dept 2008]), particularly as any delay could have been avoided had plaintiff's counsel caused the materials to be photocopied when they were first presented to him. Moreover, there is nothing proffered by plaintiff's counsel or otherwise apparent in the record that suggests that the delay, even if it were somehow chargeable to any claimed impropriety on Ms. Widercrantz's part, rather than to plaintiff's counsel's own failure timely to photocopy the materials when they were first, and timely, produced by the nonparty witness in response to the subpoena duces tecum he had issued — impede[d], impair[ed], or prejudice[d] the rights of another party" (Matter of McCormick v. Axelrod, supra, 59 NY2d at 583; see generally Palmitesta v Palmitesta, supra, 166 AD3d at 783).

For all of the foregoing reasons, plaintiff's motion, brought on by order to show cause, seeking an order punishing nonparty witness Laurie Widercrantz for contempt of court for failing to comply with a subpoena duces tecum, is denied.

The foregoing constitutes the decision and order of the court.

Dated: November 27, 2019

________________________

Riverhead, New York

HON. SANFORD NEIL BERLAND, A.J.S.C. Footnotes

Footnote 1:The stipulation of settlement called for installment payments totaling $200,000, but it is alleged that Helena Behan made only the first, $35,000, payment to Steven Behan.

Footnote 2:Helena Behan's separate effort to vacate the stipulation of settlement in the divorce proceeding was also unsuccessful.

Footnote 3:Plaintiff seeks the transfer to him of the entirety of Helena Behan's alleged 50% interest in Kelron — an interest that, he asserts is, or was, worth $400,000, together with fraud damages, lost profits and legal costs and fees "directly caused by the fraudulent acts of Defendant Behan and Defendant Hoffman." The procedural history of the current action is more fully recounted in the court's decision and order dated January 2, 2019, Behan v Behan, 62 Misc 3d 1205(A) [Sup Ct 2019], denying plaintiff's motion for leave to renew or reargue his motion to amend the complaint to add causes of action for conspiracy, which had been denied by the court in a decision and order dated March 30, 2018.

Footnote 4:That, of course, is the same issue that was decided against plaintiff following the earlier framed-issue hearing conducted by Justice Asher. Plaintiff's counsel has previously indicated that it is plaintiff's intention to seek relief from that determination after discovery is completed, but it remains unclear whether the information he is now seeking is duplicative

Footnote 5:Although in his supporting affirmation, plaintiff's counsel cites CPLR 2308 and the Appellate Division, First Department's decision in Reuters Ltd. v Dow Jones Telerate, Inc., 231 AD2d 337, 341 [1st Dept 1997], for the principle that civil contempt remedies may be pursued, in the first instance and without more, for a non-party's failure to comply with the directives of an attorney-issued subpoena in a judicial proceeding, CPLR 2308 is not among the provisions upon which the current order to show cause is predicated. Too, while plaintiff's order to show cause also invoked Judiciary Law § 750 and 751, any claim under those provisions is necessarily moot (see, e.g., Silverstein v Aldrich, 76 AD2d 911, 912 [2d Dept 1980] ("'the law is settled that a contemnor will be allowed to purge the contempt by performing the act required, or by undoing or reversing the acts constituting the contempt'" (quoting Matter of Ferrara v Hynes, 63 AD2d 675); Matter of Jones, 160 AD2d 870 [2d Dept 1990]).