Opinion
Index No. 2012-1120
03-30-2016
JOANN SOGHANALIAN, f/k/a JOANN COLETTI, Plaintiff, v. JOHN W. YOUNG, ESQ., JOSEPH F. GARBARINO, SR., JOSEPH F. GARBARINO, JR., STUART REALTY ENTERPRISES, INC, MARK H. YOUNG and ZAVEN SOGHANALIAN, Defendants
APPEARANCES: COUNSEL FOR PLAINTIFF: SCHLATHER, STUMBAR, PARKS & SALK, LLP BY: DAVID M. PARKS, ESQ., OF COUNSEL 200 EAST BUFFALO STREET P.O. BOX 353 ITHACA, NY 14851 COUNSEL FOR DEFENDANTS YOUNG, STUART REALTY ENTERPRISES, INC.: MCDONOUGH & ARTZ, P.C. BY: PHILIP J. ARTZ, ESQ., OF COUNSEL THE METRO CENTER 49 COURT STREET, SECOND FLOOR P.O. BOX 1740 BINGHAMTON, NY 13902 COUNSEL FOR DEFENDANT SOGHANALIAN: BUTLER & BUTLER, P.C. BY: MATTHEW C. BUTLER, ESQ., OF COUNSEL VESTAL PROFESSIONAL BUILDING, ANNEX 231-241 MAIN STREET VESTAL, NY 13850
At a Term of the Supreme Court of the State of New York held in and for the Sixth Judicial District at the Broome County Courthouse in Binghamton, New York, on October 28, 2015 PRESENT: DECISION, JUDGMENT & ORDER RJI No. 2012-0773 APPEARANCES: COUNSEL FOR PLAINTIFF: SCHLATHER, STUMBAR, PARKS &
SALK, LLP
BY: DAVID M. PARKS, ESQ., OF
COUNSEL
200 EAST BUFFALO STREET
P.O. BOX 353
ITHACA, NY 14851 COUNSEL FOR DEFENDANTS YOUNG,
STUART REALTY ENTERPRISES, INC.: MCDONOUGH & ARTZ, P.C.
BY: PHILIP J. ARTZ, ESQ., OF
COUNSEL
THE METRO CENTER
49 COURT STREET, SECOND FLOOR
P.O. BOX 1740
BINGHAMTON, NY 13902 COUNSEL FOR DEFENDANT
SOGHANALIAN: BUTLER & BUTLER, P.C.
BY: MATTHEW C. BUTLER, ESQ., OF
COUNSEL
VESTAL PROFESSIONAL BUILDING,
ANNEX
231-241 MAIN STREET
VESTAL, NY 13850 FERRIS D. LEBOUS , J.S.C.
This is the second application filed by defendants John W. Young and Stuart Realty Enterprises (hereinafter "the Young Defendants") seeking to hold plaintiff JoAnn Soghanalian and co-defendant Zaven Soghanalian (hereinafter sometimes JoAnn and Zaven respectively) in contempt for failing to comply with the prior orders of this court.
BACKGROUND
By way of background, on June 22, 2012 this court signed an Order to Show Cause with a temporary restraining order submitted by the Young Defendants which was made returnable on June 29, 2012. The Order contained a temporary restraint against JoAnn Soghanalian and Zaven Soghanalian that directed as follows:
ORDERED that pending a hearing and determination of this Motion, and the entry of an Order thereon, plaintiff JoAnn Soghanalian f/k/a JoAnn Coletti and Co-Defendant Zaven Soghanalian, their agents, servants, attorneys and employees are hereby enjoined and restrained from selling, removing, transferring, encumbering, pledging, damaging, hiding, concealing, assigning or otherwise disposing of the silver 1957 Mercedes 300SL Gull Wing motor vehicle or any parts to or for said vehicle presently located in the garage at 96 Ararat Drive, Vestal, New York in the County of Broome....
By Decision, Order and Judgment dated April 1, 2014, this court found and determined that plaintiff, JoAnn Soghanalian and her husband, defendant Zaven Soghanalian, deliberately and wilfully participated in the removal of the Mercedes 300 SL Gull Wing in violation of the court's June 22, 2012 Order and thereby attempted to impede, impair and prejudice the rights of the Young defendants in this action. Consequently, both JoAnn Soghanalian and Zaven Soghanalian were found in civil contempt of court. The court ordered that JoAnn Soghanalian and Zaven Soghanalian pay a fine of $250, together with costs and expenses including reasonable attorney's fees directly related to the contemptuous conduct between July 27, 2012 through the date of that Decision of April 1, 2014. Although the ultimate award of attorney's fees was reserved for a later time, said Decision directed JoAnn and Zaven to pay the sum of $10,000 within sixty days of the service of said Decision as a partial payment toward the total amount of costs and expenses to be determined at a later time.
Additionally, with respect to the first contempt application, the court found that by the wilful nature of defendant Zaven Soghanalian's conduct in deliberately attempting to mislead the court and the parties as to the whereabouts and location of the Mercedes vehicle that he should receive a prison sentence of thirty days. The court gave defendant Zaven Soghanalian the opportunity to purge himself of that portion of the penalty by returning the Mercedes to the jurisdiction of the court within thirty days after service of said Decision with notice of entry. The defendant Zaven Soghanalian failed to purge himself of said contempt and on June 2, 2014 a warrant was signed. By Letter Decision & Order dated May 15, 2014, this court awarded the Young Defendants a total award of $83,226.71 comprised of $73,729.50 in legal fees, $9,247.21 in disbursements, and the $250 fine. A Judgment therefore was signed on June 30, 2014.
On November 7, 2014, defendant Zaven Soghanalian was arrested on a bench warrant and remanded to Broome County Jail to serve a thirty day sentence. Zaven was released after serving his full thirty day sentence.
THE SECOND CONTEMPT APPLICATION
The Young Defendants commenced this second and distinct application for contempt by way of an Order to Show Cause signed on November 24, 2014 and returnable December 2, 2014 seeking to hold JoAnn Soghanalian and Zaven Soghanalian in further civil/criminal contempt of the court's orders dated June 22, 2012 and April 1, 2014. On the December 2, 2014 return date the Soghanalians appeared in court. During this appearance in the presence of both JoAnn Soghanalian and Zaven Soghanalian the court scheduled a contempt hearing for March 26 and 27, 2015. An Order dated December 11, 2014 scheduling said hearing was also signed and provided to all counsel. Pending this second hearing said Order continued the restraints contained in all of the earlier orders pertaining to the Mercedes vehicle.
To no one's surprise, the hearing scheduled for March 26 and 27, 2015 did not take place. Defendant Zaven Soghanalian through his attorney and with the aid of various physicians was able to continually delay any hearing on the second contempt proceeding until October 28 and 29, 2015.
THE SECOND CONTEMPT HEARING
The second contempt hearing was ultimately held on October 28, 2015. Zaven Soghanalian failed to appear on October 28, 2015 for this contempt hearing. The court had informed Zaven Soghanalian in person of the original second contempt hearing date of March 26, 2015 at his December 2, 2014 appearance and by way of the Order dated December 11, 2014. The March 26, 2015 date was adjourned - at Zaven's request - and the adjourned date of October 28, 2015 was set by court Order dated June 29, 2015.
JoAnn Soghanalian appeared on October 28, 2015 and testified that several days prior to the hearing Zaven's cousin, who happens to be a physician, visited with both Zaven and JoAnn. The cousin informed Zaven that if he were subsequently sentenced to jail for a second time, he physically would not do well. Consequently the cousin spirited Zaven away to Florida and as JoAnn testified, the two of them left in the morning of October 27, 2015 - one day before the scheduled hearing. JoAnn further testified that she told Zaven he had to be in court for the hearing and was disturbed that he would deliberately leave without notifying his attorney or the court or presenting any proof as to why he was physically unable to attend.
As the court found in its previous Decision, JoAnn Soghanalian can exercise no control or influence over her husband. Rather Zaven Soghanalian acts on his own and in concert with relatives. He does as he pleases when he pleases, regardless of the advice from his counsel or others, and in total disregard of the numerous prior orders of this court. This conduct in and of itself reeks of contempt for this court's order and the rule of law.
The main thrust, however, of the Young Defendants' argument is that subsequent to the court's first TRO, Zaven Soghanalian deliberately had - at his direction or by his agents - several modified certificates of title issued by the Texas Department of Motor Vehicles for the Mercedes. Each duplicate title listed as lien holder, Alpha Omega Aircraft - a company for which Zaven Soghanalian is reputedly the president. Two of these titles appear to have been issued within days of the disappearance of the vehicle from the jurisdiction of this court as well as within days of this court's June 22, 2012 order that the vehicle remain at 96 Ararat Drive. That order also required that the vehicle not be encumbered, liened or pledged in any way and that the then existing certificate of title be held by local attorney, Paul Price, Esq. whose client (the Prentice Estate) had an interest in the vehicle remaining locally as said vehicle had been pledged as collateral for a loan taken out by the estate. That pledge of collateral was also after the court's June 22, 2012 TRO and was found previously to be a basis of contempt against Zaven in the court's April 1, 2014 Decision & Order.
DISCUSSION
The court will reiterate its discussion of the elements of civil and criminal contempt from the prior application for contempt. It is well-settled that in order to sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect; that the order has been disobeyed; and that the party charged had knowledge of the court's order (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240 [1987]; Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d 1308, 1309 [3d Dept 2010]). With respect to civil contempt, the rights of a party to the litigation must have been prejudiced, whereas in criminal contempt, no such showing is required since the right of private parties is not controlling because the harm is an affront to the court (Matter of McCormick v Axelrod, 59 NY2d 574, 582-583 [1983], order amended 60 NY2d 652 [1983]). The same act may constitute both criminal and civil contempt and "[t]he element which escalates a contempt to criminal status is the level of willfulness associated with the conduct [citation omitted]" (McCain v Dinkins, 84 NY2d 216, 226 [1994]; Judiciary Law § 750 [A] [3]). Moreover, criminal contempt must be proven beyond a reasonable doubt whereas civil contempt, in contrast, must be proven by clear and convincing evidence (Copake, 73 AD3d at 1309; Judiciary Law § 753 [A] [3]).
1. Certificates of Title
The Young Defendants argue that Zaven Soghanalian is in contempt because he had further encumbered and liened said Mercedes vehicle by obtaining duplicate certificates of title in Texas, naming Alpha Omega Aircraft as the primary lien holder. The court finds that the Young Defendants' proof is not sufficient to meet the clear and convincing standard required for a civil contempt.
First, the supporting documents submitted with these duplicate applications were missing. Moreover, it is not clear that all of the information including the identification number, driver's license number, date of birth of the applicant belonged to Zaven Soghanalian. Moreover, no one could identify from the varied signatures on these applications and titles whether any were the signature of Zaven Soghanalian.
The court firmly believes that Zaven Soghanalian was the "mastermind" behind all these additional certificate transactions. However, the court agrees with Zaven's counsel that since multiple parties are interested in this automobile, it can not be said by clear and convincing evidence that Zaven Soghanalian would be the only person who could have appeared at the Texas Department of Motor Vehicles and applied for duplicate or amended certificates of title. In view of the foregoing, the court finds that the Young Defendants have failed to establish that Zaven further encumbered and liened said Mercedes vehicle by obtaining duplicate certificates of title in Texas. Therefore, the contempt application on this basis is denied.
2. Failure to appear at hearing
That having been said, however, the court is equally satisfied that Zaven Soghanalian should be held in contempt for his deliberate and wilful failure to appear as directed for the contempt hearing on October 28, 2015 and continued proceedings. Testimony at the hearing on October 28, 2015 established by clear and convincing evidence that Zaven Soghanalian acknowledged to JoAnn Soghanalian in the presence of his cousin that he was aware of the court hearing. That she advised him to appear for the hearing the next day. He refused, allegedly on the advice of his cousin, that he was too ill to appear. However, he was well enough to flee the jurisdiction and travel to Florida where the court believes he remains to this day in order to avoid providing the appropriate information and testimony to resolve this dispute over the Mercedes vehicle once and for all. Moreover, Zaven's attorney, Mr. Butler, acknowledged in court that Zaven was fully aware of the hearing and was not present for the same.
Deliberate avoidance of a contempt proceeding and failure to appear for the hearing on the same in and of itself is contemptuous behavior and "[a] party may be held in contempt upon his default in appearing at the contempt hearing and inquest [citations omitted]" (Green v Green, 288 AD2d 436, 437 [2d Dept 2001]; Kawar v Kawar, 231 AD2d 681 [2d Dept 1996]; Brancoveanu v Brancoveanu, 156 AD2d 409 [2d Dept 1989], lv dismissed 75 NY2d 946 [1990]). The court is satisfied that defendant Young has produced clear and convincing evidence based on the testimony elicited from JoAnn Soghanalian that Zaven Soghanalian deliberately fled the jurisdiction of the court so as not to have to appear and answer questions relating to his apparent contemptuous conduct in obtaining duplicate vehicle titles for the Mercedes vehicle. As such, the court finds Zaven Soghanalian in civil contempt for failing to appear at the contempt hearing on October 28, 2015 and October 29, 2015.
3. Failure to pay $10 ,000
As a separate and distinct basis for contempt, the April 1, 2014 Decision of this court directed that the Soghanalians, both Zaven and JoAnn, pay $10,000 within sixty days of the date of service of that Decision. To date the Soghanalians have failed to honor that direction as of the date of this Decision.
Affidavits of service were filed establishing service by mail of said Decision on counsel on April 1, 2014, and by affixing and mailing on April 3, 2014 on both Zaven and JoAnn Soghanalian.
At the October 28, 2015 hearing JoAnn Soghanalian testified that she and her husband have been selling assets and gold and living off that income; they have had insurance settlements with regard to their home on Ararat Drive; that they have for the past three years continued to rent property for the winter in Boca Raton, Florida; and that since 2014 have had sufficient funds to travel to Washington, D.C. and Chicago, Illinois. Both continue to be represented by private counsel and neither have claimed or demonstrated an inability to pay the $10,000 as directed by the court.
In light of the foregoing, the court finds that the Young Defendants have satisfied by clear and convincing evidence that the Soghanalians' failure to pay $10,000 within sixty days pursuant to this court's April 1, 2014 Decision is a separate basis for contempt against both Zaven Soghanalian and JoAnn Soghanalian.
THE PENALTY
Pursuant to Judiciary Law § 773, "[a] fine may be imposed, not exceeding the amount of complainant's costs and expenses, and two hundred and fifty dollars in addition thereto...." Costs and expenses include reasonable counsel fees and such other costs and expenses that are directly related to the contemptuous behavior (Hamilton v Murphy, 79 AD3d 1210 [3d Dept 2010], lv dismissed 16 NY3d 794 [2011]).
1. Fine , Costs and Expenses
Based on the foregoing, the court finds that (1) Zaven Soghanalian is in civil contempt for failure to appear for this contempt hearing on October 28, 2015 and that (2) both JoAnn Soghanalian and Zaven Soghanalian are in civil contempt for their failure to pay $10,000 in accordance with this court's prior Decision.
Pursuant to Judiciary Law § 773, the court fines Zaven Soghanalian and JoAnn Soghanalian jointly and severally the amount of costs and expenses including reasonable counsel fees and such other costs and expenses that are directly related to the contemptuous behavior. Additionally, the court fines Zaven Soghanalian the sum of $250 for his civil contempt in failing to appear for the second contempt hearing and the court further fines Zaven Soghanalian and JoAnn Soghanalian the sum of $250 each for their individual failure to pay $10,000 in accordance with the court's prior Decision.
With respect to the determination of reasonable attorney's fees, in a letter dated November 13, 2015, counsel for the Young Defendants submitted a proposed Exhibit ZZ which contains a summary of time and expenses in connection with the contempt proceedings from April 17, 2014 to that date. The estimate of fees is 110.25 hours at $195 hours for a total of $21,498.75, plus another $417.05 in expenses. As the court decided in the first contempt application, the court will permit Zaven Soghanalian and/or JoAnn Soghanalian an opportunity to dispute the reasonableness of the total amount of attorney's fees incurred by the Young Defendants by way of a hearing or on submission. The court will schedule an attorney conference to discuss a timetable for such determination and the manner thereof. However, the court will direct that in the interim the sum of $4,000 shall be paid by Zaven Soghanalian and JoAnn Soghanalian to the attorneys for the Young Defendants within sixty (60) days from the service of this Decision & Order, with notice of entry, as a partial payment toward the total award that has yet to be determined.
Exhibit ZZ is accepted by the court into evidence, with the letter of McDonough & Artz, P.C. dated November 13, 2015 annexed thereto.
2. Imprisonment
Judiciary Law § 753 empowers the court to punish civil contempt by way of imprisonment. The court finds that imprisonment is - again - an appropriate punishment for Zaven Soghanalian for his failure to appear at the contempt hearing. The court finds that there was a willful nature to Zaven Soghanalian's failure to appear, as well as his failure to pay the $10,000 previously directed. The court imposes a sentence on Zaven Soghanalian of thirty (30) days in the Broome County Jail.
With respect to the JoAnn Soghanalian, the court finds that imprisonment is not warranted in relation to her failure to pay the sum of $10,000 as there was no proof that she in any way has control over the parties' monies and/or independent access to the assets and gold being used to support their lifestyle at this juncture. As noted in the prior Decision, JoAnn Soghanalian has no control over her husband's actions and little, if any, input into his financial decisions.
3. Purging of contempt
The court will give Zaven Soghanalian and JoAnn Soghanalian an opportunity to purge themselves of their contempt for failing to pay the sum of $10,000 pursuant to the court's April 1, 2014 Decision by making said payment within thirty (30) days after personal service of this Decision & Order, with notice of entry.
With respect to Zaven Soghanalian's failure to appear at the hearing, prior to the start of any jail time, the court will give defendant Zaven Soghanalian the opportunity to purge himself of this portion of the penalty for his civil contempt and attendant jail time by appearing before this court and being sworn and testifying at a time and place to be fixed.
Finally, at the time of the attorney conference to discuss a timetable for a determination regarding reasonable attorney's fees the court will also discuss with counsel the scheduling of a trial to move this matter forward once and for all.
This constitutes the decision, judgment and order of the court. DATED: March 30, 2016
s/ Ferris D. Lebous
Hon. Ferris D. Lebous
Justice, Supreme Court