Case(s) released on: July 22, 2019
Surrogate López TorresESTATE OF KRZYSZTOF RUTKOWSKI, Deceased (16-1354/G) — In this miscellaneous proceeding, Irena Rutkowski (administrator) seeks an order for contempt against Jadwiga Rutkowska (Jadwiga), Slavcho Anchev (Slavcho), and Ivan Anchev (Ivan) for allegedly collecting rents on estate property in violation of the court’s prior order. Ivan submitted an answer denying the allegations. Slavcho appeared on his own behalf, but has failed to file an answer as directed. Jadwiga did not appear for reasons explained below.BackgroundKrzysztof Rutkowski (decedent) died intestate on March 18, 2016, leaving his spouse, the administrator herein, and two children, Christopher who is the administrator’s son, and Julia who apparently resides with her mother in Brazil. Jadwiga is the decedent’s mother. Slavcho is a son-in-law of Jadwiga and was designated an agent of Jadwiga pursuant to a power of attorney dated January 25, 2017. Ivan is a grandson of Jadwiga, who was also designated an agent of Jadwiga pursuant to a power of attorney dated September 21, 2016.Jadwiga, by Ivan as attorney-in-fact, previously filed proceedings for discovery and turnover against the administrator, alleging that certain real properties that the administrator claims are part of decedent’s estate, actually belonged to Jadwiga’s sister Hieronima Rutkowska (Hieronima), who died on August 3, 2011. Jadwiga alleges that Hieronima was the sole owner of the real properties, and pursuant to a Will that was probated on July 16, 2014, Hieronima bequeathed her entire estate to Jadwiga. Thus, the real properties are asserted to belong to Jadwiga.The administrator previously filed a proceeding to amend her letters of administration, which appeared on the calendar on July 25, 2017. At that time, the administrator’s counsel advised the court that Ivan and/or Slavcho had been collecting rents from tenants at the disputed real properties and depositing the proceeds in an account other than the estate account. At the conference, counsel who represented Jadwiga’s interests at the time, informed the court that Slavcho had accused him and his firm of misconduct and verbally discharged the firm from representing Jadwiga, even though Ivan had retained the firm. However, after consulting with Ivan, counsel was informed that Slavcho was handling all of Jadwiga’s legal affairs. Counsel further stated that he wished to withdraw as attorney for Jadwiga due to the difficulties presented by Slavcho’s erratic conduct.1On July 26, 2017, the court issued an order (a) directing Jadwiga and her attorneys-in-fact, Ivan and Slavcho, to cease collecting rents for the real properties: (b) directing Jadwiga to immediately instruct Ivan and Slavcho to cease collecting rents: and (c) directing Jadwiga, Ivan. and Slavcho to immediately cease interfering in the administration of decedent’s estate.Petition for Order of ContemptThe administrator’s instant petition alleges that notwithstanding the July 26, 2017 order, Jadwiga, Ivan, and/or Slavcho continued to collect rents at the disputed properties and otherwise interfered with the administration of the estate. The administrator alleges that prior to July 2017, the tenants stopped sending rent checks to the administrator. The administrator further alleges that upon investigation, she learned that Slavcho had been banging on the tenants’ doors, threatening and harassing them until they handed the rent checks to him. Further, the administrator alleges that Jadwiga, Ivan and/or Slavcho opened bank accounts in the corporate names of the real properties and arranged for rent checks to be sent to Jadwiga’s apartment. The administrator alleges that this conduct continued even after the July 26, 2017 order. Moreover, in and around September 2017, $10,000.00 of rent proceeds were withdrawn from the accounts, thereby interfering with the administration of the estate.Upon filing of the instant petition, an order was issued directing Jadwiga, Slavcho, and Ivan to appear on May 22, 2018 and show cause why they should not be held in contempt for violating the July 26, 2017 order. On that date, Slavcho appeared and requested an adjournment to retain counsel. Ivan appeared by counsel, having previously filed an answer to the petition denying that he had ever collected rent or interfered with the administration of the estate in any manner. Jadwiga did not personally appear, and no counsel appeared on her behalf. The matter was adjourned to July 10, 2018 to allow Slavcho to retain counsel. On that day, Slavcho appeared again without counsel and was directed to file an answer, whether he retained counsel or not, by August 10, 2018. To date, Slavcho has not filed an answer to the contempt proceeding.Thereafter, a guardian ad litem (GAL) was appointed for Jadwiga, given that she was reportedly elderly and infirm, and there were questions as to whether her interests were in fact being guarded by anyone. According to the GAL’s report dated October 17, 2018, the GAL spoke with the last attorney of record for Jadwiga, who reported that he never personally spoke with Jadwiga and did not have contact information for her. The report further states that the GAL visited Jadwiga at her home and learned that she is 90 years-old, partially deaf, and can neither read nor converse in English. The GAL’s report also states that Jadwiga had a marginal understanding of the proceedings in which she is either the petitioner or respondent, and that she was not aware that there was a contempt proceeding brought against her.The GAL’s report further states that the GAL spoke with Slavcho, who was combative and repeatedly stated that the GAL has no right to speak with Jadwiga and that “no one can speak with” her except him as he has a power of attorney. The GAL also spoke with Jadwiga’s granddaughter who stated that she was concerned that Slavcho is not in fact protecting Jadwiga’s interests. In addition, the granddaughter reported that Slavcho had opened bank accounts to deposit rent checks from the disputed properties and used the funds for his personal expenses. The granddaughter also stated that Slavcho has refused to provide any other family member with any information regarding the pending proceedings.DiscussionAn order or decree of this court requiring the performance of any act may be enforced by service of a certified copy of such order upon the party against whom it is directed, and if the party refuses or willfully neglects to obey it, the court may punish the party for contempt of court.2 SCPA 606; Judiciary Law 753(A)(3) ([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:… disobedience to a lawful mandate of the court). A party seeking enforcement of an order or decree by punishment for contempt must file a petition and establish (a) that a certified copy of the order or decree has been personally served upon the person against whom it was entered; (b) that the respondent has refused or willfully neglected to obey such order or decree; and (c) serve the respondent with an order to show cause why he or she should not be punished for contempt. SCPA 607.In order to find a party in contempt, the court must determine that (a) a lawful order of the court, clearly expressing an unequivocal mandate was in effect; (b) with reasonable certainty, that the order has been disobeyed; (c) the party to be held in contempt had knowledge of the court’s order; and (d) prejudice to the right of a party to the litigation has been demonstrated. See Judiciary Law 753(A); McCormick v. Axelrod, 59 N.Y.2d 574, 583 (1983). “Civil contempt has as its aim the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right.” McCormick at 582-583.Here, Ivan appeared in court and filed an answer stating that he has not collected any rents or otherwise interfered with the administration of the estate, or take any other action with regard to Jadwiga’s affairs since Slavcho began acting as Jadwiga’s agent. As for Jadwiga, it appears that her personal interests have not been appropriately guarded and that she was unaware of the contempt proceeding against her or the consequences of the proceeding. Accordingly, the court finds that Ivan and Jadwiga have not acted in contempt of the court’s order of July 26, 2017.As for Slavcho, he appeared in court in response to the order to show cause and acted in an obfuscating, loud and combative manner, and has otherwise delayed and obstructed this and related proceedings. Further, he was given a clear order to file an answer by August 10, 2018, but failed to do so. The administrator has provided proof that a certified copy of the July 25, 2017 order was personally served upon Slavcho and that an order to show cause was served upon Slavcho. SCPA 607. Even though Slavcho was granted a generous amount of time to retain an attorney and to file an answer, he has failed to dispute that he collected rents and otherwise interfered with the administration of the estate in violation of the court’s July 26, 2017 order.Accordingly, there is no dispute that (a) Slavcho was personally served with a certified copy of the court’s July 26, 2017 order; (b) Slavcho has refused or willfully neglected to obey such order or decree; and (c) Slavcho was served with an order to show cause why he or she should not be punished for contempt. SCPA 607. Further, the order clearly expressed an unequivocal mandate that Slavcho was to cease collecting rents or otherwise interfering in the administration of the estate. Given that the petitioner has provided evidence that Slavcho continued to collect rents after the issuance of the order and that Slavcho has failed to dispute that allegation, the court finds with reasonable certainty that Slavcho disobeyed the order. Lastly, Slavcho’s conduct has prejudiced the right of the petitioner to properly administer the estate. See Judiciary Law 753(A); McCormick at 583. Therefore, the court finds that Slavcho has acted in contempt of the court’s order.Where a party is found to be in civil contempt, there are two distinct methods of assessing the fine to be imposed upon the contemnor. See Judiciary Law 773; State v. Unique Ideas, Inc., 44 N.Y.2d 345, 349 (1978). First, where actual damages have resulted from the contemnor’s conduct, the fine must be “sufficient to indemnify the aggrieved party.” Id. Second, where there may have been prejudice to the aggrieved party, but not an actual loss or injury, the fine may not exceed the amount of the aggrieved party’s actual costs and expenses plus $250.00. Id.Here, the petitioner has provided insufficient proof to account for exactly how much in rents Slavcho has collected in violation of the court’s order and therefore, actual damages cannot be determined and assessed. Accordingly, the court finds that the fine to be assessed against Slavcho is the petitioner’s costs and expenses incurred in filing this proceeding, i.e., attorney’s fees and filing fees plus $250.00. Id. This is an appropriate fine given that, but for Slavcho’s contemptuous acts that violated the court’s order, the petitioner would not have incurred the attorney’s fees and costs necessary to bring this proceeding.ConclusionFor the foregoing reasons, the petition is granted, and Slavcho Anchev is found to be in default and to have acted in contempt of the court’s order. Accordingly, it is herebyORDERED, that Slavcho Anchev is held in civil contempt, pursuant to Judiciary Law 753, for violating this court’s order dated July 25, 2017, by collecting rents on estate property and otherwise interfering with the administration of the estate, and it is furtherORDERED, that Slavcho Anchev, personally and not as an agent for Jadwiga, shall reimburse the administrator for reasonable costs and attorneys’ fees incurred for having to file this contempt proceeding, plus $250.00, and it is furtherORDERED, that petitioner shall settle decree on notice and submit therewith a bill for costs and attorney’s fees incurred in the filing of this contempt proceeding, along with an attorney’s affirmation of services.
