Opinion
021471/2007
10-28-2015
Douglas Elliman LLC d/b/a PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE, Plaintiff, v. Rhona Silver, RHOBAR DEVELOPMENT ASSOCIATES, LLC, formerly known as RHONA SILVER ENTERPRISES-HOTEL LLC, and ACKERLY ASSOCIATES, LLC, Defendants.
MEYER SUOZZI ENGLISH & KLEIN Attorneys for Plaintiff By: Mr. Robert N. Zausmer, Esq. PO Box 9194, 990 Stewart Avenue Garden City, NY 11530 SMITH, BUSS & JACOBS, ESQ. 733 Yonkers Avenue Yonkers, NY 10704 MS. RHONA SILVER Defendant Pro Se 16 East 82nd Street New York, NY 10028 HUNTON & WILLIAMS, LLP 200 Park Avenue New York, NY 10166
MEYER SUOZZI ENGLISH & KLEIN
Attorneys for Plaintiff
By: Mr. Robert N. Zausmer, Esq.
PO Box 9194, 990 Stewart Avenue
Garden City, NY 11530
SMITH, BUSS & JACOBS, ESQ.
733 Yonkers Avenue
Yonkers, NY 10704
MS. RHONA SILVER
Defendant Pro Se 16 East 82nd Street
New York, NY 10028
HUNTON & WILLIAMS, LLP
200 Park Avenue
New York, NY 10166
James Hudson, J.
Upon the following papers numbered 1 to 29 read on this Motion/Order to Show Cause for Contempt; Notice of Motion/Order to Show Cause and supporting papers 1-18; Notice of Cross Motion and supporting papers 19-27; Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers 28-29; Other 0; (and after hearing counsel in support and opposed to the motion), it is ORDERED , that Plaintiff/Judgment Creditor's motion for an order adjudicating the Defendant Judgment/Debtor Rhona Silver as being in contempt and the cross-motion of Ms. Silver for an order "dismissing Plaintiff's motion...compelling Plaintiff to respect the Defendants right to an attorney and for the recusal of the prior Judge in this case..." are decided as follows: It is
ORDERED , that the parties are directed to appear at the New York State Supreme Court of Suffolk County, One Court Street, Riverhead, NY, Part XL on Tuesday, January 5, 2016 at 9:30am, for purposes of a hearing at which time the Court will determine if the Defendant/Judgment Debtor shall be adjudicated as being in contempt of the Order of the Court dated February 26, 2015, which directed her deposition. It is further ORDERED , that (at the Plaintiff/Judgment Creditor's discretion), the Defendant/Judgment Debtor, Ms. Rhona Silver, is directed to submit to a mental examination by a psychiatrist retained by the Plaintiff/Judgment Creditor within forty-five (45 days) from service of a copy of this Order on Defendant's counsel (Judiciary Law §761).
ORDERED ,that Defendant's application for the Court's recusal is denied as moot.
The matter before us is an action to enforce a monetary Judgment (Emerson J.), entered July 14, 2014. Pursuant to CPLR §§5223 and 5224, Plaintiff has sought disclosure to ascertain the existence of assets in order to satisfy the judgment. After several instances in which Ms. Silver declined to testify willingly, Plaintiff ultimately obtained an Order from the Court on February 26, 2015, directing Ms. Silver to be deposed on April 1, 2015. Plaintiff contends, inter alia, that Ms. Silver appeared and refused to participate in the deposition, other than to note her physical and mental incapacity as well as indicating that she wished to be represented by counsel. In regards to the absence of counsel, Ms. Silver claimed that she had been thwarted in her attempt to obtain representation due to the actions of a Mr. Barry Newman (transcript of deposition, Plaintiff's Exhibit 6). Ms. Silver also brought an affidavit from Dr. Leslie Seiden which stated that Ms. Silver's physical/mental condition precluded her submitting to an examination.
Plaintiff asserts that Ms. Silver is engaging in a canard and moves for an order of contempt (Judiciary Law§§ 753, 756). Defendant opposes the motion and cross-moves for the relief noted above.
Initially, the Court will address Ms. Silver's claimed status as being a self-represented party. The most recent records of the Court indicate that the firm of Smith, Buss & Jacobs Esqs. represents the Defendant/Judgment Debtor. In her cross-motion, however, Ms. Silver indicates that she is representing herself.
"The right to represent oneself in both civil and criminal matters is basic to our system of justice" ( Muka v. New York State Bar Ass'n , 120 Misc 2d 897, 903, 466 N.Y.S.2d 891, 895 [Sup. Ct. Tompkins Co. 1983] citing, New York State Constitution Art. 1, § 6; CPLR§321[a]). This right can only be abrogated in cases of "infancy... incompetency" or where a pro-se litigant is clearly abusing the judicial process (Id. at 903; Shreve v. Shreve , 229 AD2d 1005, 645 N.Y.S.2d 198 (4th Dept.1996); Uzamere v. Uzamere , 28 Misc 3d 1207(A), 957 N.Y.S.2d 639 (Sup. Ct. Kings Co. 2010) aff'd, 89 AD3d 1013, 933 N.Y.S.2d 336 (2011).
If it is Ms. Silver's intention to proceed both with counsel and inops consilli, she should inform the Court of this proposal so that it may be considered as to its propriety. Hybrid representation does not inure as of right but instead is within the discretion of the Court to allow or deny ( People v. White , 73 NY2d 468, 541 N.Y.S.2d 749[1989]; see, People v. Ross , 221 AD2d 383, 633 N.Y.S.2d 355 [2nd Dept. 1995]).
We must also inform Ms. Silver that since she has retained an attorney, she can place him or her in an untenable position by not cooperating with them. We must also remind counsel of record that unless they are relieved by the Court or formally discharged by their client, their obligation to attend the Court on scheduled dates remains undiminished (22 NYCRR §130-2.1). The unenviable position of defense counsel is compounded by the fact that the Court is not obliged to inquire as to whether Ms. Silver discussed the bringing of her cross-motion with the law firm currently representing her ( People v. Rodriguez ,95 NY2d 497, 741 N.E.2d 882, 719 N.Y.S.2d 208 [2000]). This leaves an attorney unaware that their client may have put matters before the Court which are arguably against Ms. Silver's interest. For the sake of judicial economy and in the interest of justice, however, the Court will overlook the myriad of technical defects in Ms. Silver's papers and consider them on the merits.
In her argument that Plaintiff's requested relief should be denied, Ms. Silver submits certain documents. They include what appears to be a copy of a press release concerning a federal lawsuit and a copy of a verified complaint for a federal lawsuit which does not include the Plaintiff Douglas Elliman LLC. Additionally, Ms. Silver includes a March 26, 2015 affidavit from Dr. Leslie Sieden and a more recent "affidavit" dated May 7, 2015, from Dr. Seiden declaring that Ms. Silver "...is not able to testify at a deposition or appear in Court at this time." Ms. Silver also has submitted an "affidavit" dated May 7, 2015, in which she emphatically states that she is physically and mentally unable to render testimony. As to these latter two documents, we must note that although they are styled "Affidavits," there is no indication that the documents were subscribed before a notary or other public official empowered to administer an oath (CPLR § 2309). It is well settled, to the point of being a legal truism, that an affidavit is "[a] voluntary declaration of facts written down and sworn to by the declarant before an office authorized to administer oaths" ( Greystone Staffing , Inc. v. Vincenzi , 7 Misc 3d 1024(A),801 N.Y.S.2d 234 [Sup. Ct. Nassau Co. 2005] citing, Black's Law Dictionary ). Accordingly, although we have considered these documents to some limited degree, we find these two pieces of correspondence to be of little utility in resolving the motion and cross-motion since they do not rise to the level of sworn proof.
We now turn to the question of whether the Defendant/Judgment debtor should be held in contempt. The remedy of civil contempt serves as a vindication for parties who have been "harmed by [a] contemnor's failure to obey a court order" ( Department of Housing Preservation and Development of City of New York v. Deka Realty Corp . 208 AD2d 37, 42, 620 N.Y.S.2d 837 [2nd Dept.1995]); Judiciary Law§ 753). While criminal contempt (Judiciary Law§ 750) is used to punish those who wrongfully rebel against judicial authority and is employed "to protect the integrity and dignity of the judicial process and to compel respect for its mandates," civil contempt penalties are invoked "not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate" ( Department of Housing Preservation and Development of City of New York v. Deka Realty Corp. supra, at 42; Matter of Department of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY , 70 NY2d 233, 239, 519 N.Y.S.2d 539 [1987]).
The movant seeking to have a respondent adjudicated as being in contempt must prove the wilful and contumacious conduct by clear and convincing evidence ( Rolon v. Torres , 121 AD3d 684, 993 N.Y.S.2d 348 [2nd Dept.2014); Bemis v. Town of Crown Point , 121 AD3d 1448,1452, 995 N.Y.S.2d 794 [3rd Dept.2014]). In the case before us the factual dispute as to the circumstances surrounding the admitted non-compliance with the terms of Justice Emerson's Order precludes a decision on papers alone. Accordingly, Plaintiff will be afforded the opportunity to prove its allegations at a hearing before the Court.
Ms. Silver has admitted to not being deposed, and the sole question is whether the behavior in question was wilful. Ms. Silver's mental and medical well-being are, of course, of great concern to the Court. If her actions were precipitated by a genuine illness which prevented her appearance, the Court's inquiry concerning contempt will end there. Plaintiff will have to content itself until such time as nature's gentle course and the ministrations of medical science restore Ms. Silver to health. There is also the possibility that the proof adduced at the hearing warrants a compromise in the form of a directive that Ms. Silver render up information via the use of interrogatories ( Ceron v. Belilovsky , 93 AD3d 714 [2nd Dept.2012]; 748 N.Y.S.2d 102); Button v. Guererri , 298 AD2d 947 [4th Dept.2002]; 938 N.Y.S.2d 607. At this juncture, such a decision would be premature.
A detached observer could readily see the flaw in adopting a policy whereby a Court accepts as dispositive a person's correspondence and the letter of their physician, without benefit of cross-examination or other challenge. It would also be improvident for the Court to consider an affidavit as conclusive evidence of Ms. Silver's lack of fitness to be subjected to a deposition. It sets the stage for a malingerer to profit from an abuse of the Court system. It is unfortunate that persons acting in good faith (as we presume Ms. Silver to be), must be inconvenienced as the Court rakes for the truth and (to use an old metaphor) separates precious metals from the dross. History has taught us that there is no alternative.
The March 26, 2015 Affidavit of Dr. Seiden relates that Ms. Silver is diagnosed with "Major Depression...psychiatric code of 296.32" and that "...her mood is low and she is thinking slowly." The May 7, 2015 letter of Dr. Seiden is alarming in that it states that Ms. Silver's "...condition continues to worsen each week...all the complications from her case is seriously destroying her mental health." The Doctor further informs the reader that Ms. Silver is suffering a "diminished ability to think or concentrate nearly every day." The transcripts of the October 15, 2014, and April 1, 2015, attempted depositions are also disturbing by the manner in which Ms. Silver appeared to alternately demand and refuse the assistance of counsel. A fair reading of the transcript moves us to characterize Ms. Silver's behavior as being disruptive and irrational.
If the prognosis of Dr. Seiden is ultimately established as truth, the Court may be required to impose a remedy under Parens. The doctrine of Parens Patriae is among the most ancient of powers conferred on a Court and is found in the Twelve Tables of Rome, dating from the Ab Urbe Condita itself (Table V Law VII). This venerable principle finds modern voice in statutes such as those contained in Mental Hygiene Law Article 81 as well as CPLR §§1201, 1202 which allow a Court to appoint a Guardian Ad Litem, on its own initiative for an "adult incapable of adequately prosecuting or defending his rights." If Ms. Silver has deteriorated into a "chronic irrational and agitated state" demonstrating a "manifest inability to assist" her attorneys in her defense, it would be the Court's somber duty to appoint a Guardian Ad Litem to represent her interests ( Anonymous v. Anonymous , 256 AD2d 90, 91, 681 N.Y.S.2d 494, 494 [1st Dept.1998]).
From the Founding of Rome.
Based on Ms. Silver's representations, she has clearly placed her mental and physical health in issue (CPLR§§3121, 5223). To assist the Court in making the determination of Ms. Silver's fitness to proceed, as well as the wilful or non wilful nature of her prior behavior, Plaintiff is to be afforded the opportunity to engage the services of a Psychiatrist to examine Ms. Silver concerning her mental capacity and capability to testify. In turn Ms. Silver is directed to submit to an examination by a Psychiatrist of Plaintiff's choosing within forty-five days from the entry date of this decision. The contempt hearing will follow Ms. Silver's examination by Plaintiff's physician.
Although a psychiatric examination of Ms. Silver was not requested by the Plaintiff, the Court has a recognized power to regulate discovery to prevent abuse and it is our opinion that ordering an examination of the Judgment/ Debtor under these circumstances comes within the Court's prerogative (CPLR § 5240; see, Ramirez v. New York City Transit Auth .,____A.D.2d ___ [2nd Dept. Oct.7,2015] 17 N.Y.S.3d 176).
Perhaps a declining mental state is responsible for certain language by Ms. Silver in her submission dated May 7, 2015, relating to actions by the Honorable Justice Emerson in this case. The comments will not be repeated in this decision because they constitute an Ad Hominem attack on an esteemed and widely cited jurist. It is beyond cavil that Ms. Silver enjoys a right to criticize, not just opposing counsel, but the Court itself. Such a right, however, does not give rise to a prerogative for "unfounded and intemperate criticism, insulting language or abuse" ( Justices of Appellate Division , First Dept. v. Erdmann 39 AD2d 223, 333 N.Y.S.2d 863 [1st Dept.1972] rvsd. 33 NY2d 559, 347 N.Y.S.2d 441). It must be emphasized, however, that no censure can be imposed on Ms. Silver for any intemperate language if it is the result of mental illness, witness the maxim " Furiosus solo furore punitur" (Co. Litt. p. 247).
The mentally ill person is punished by their malady alone.
We remind Ms. Silver, if she is capable of understanding this decision, that civility must reign in a courtroom as well as all aspects of the judicial process, including submission of papers and depositions taking place in an attorney's office. Not as an end in itself, but for the greater purpose of ensuring that justice is obtained for all concerned ( Freidman v. Fayenson , 41 Misc 3d 1236(A), 983 N.Y.S.2d 203 [Supreme, NY Co.2013]; 22 NYCRR 1200, Appendix A). The Court is confident that such language (which ill serves Ms. Silver's cause) will not be repeated and this matter will move forward and be concluded with the mutual courtesies that befit the best traditions of the bench and bar.
The Court is mindful that a case which has wended its way through the court system for such a long period of time must be extremely vexing to the parties involved. We must resist the urge to act with celerity, however, because of the possibility of bodily restraint and punitive fines as a remedy for contempt. Under these circumstances, the sage observation of the immortal Lord Coke "Abundans cautela non nocet" warns us that the Court must not move in a precipitous fashion (11 Co. 6).
Abundant or extreme caution does no harm.
Therefore, under the circumstances presented, the Plaintiff's motion is granted to the extent provided herein and Defendant's cross-motion is denied.
The foregoing constitutes the decision and Order of the Court.
DATED:OCTOBER 28, 2015
RIVERHEAD, NY
HON. JAMES HUDSON, A.J.S.C.