Buckheit v. Thompson

• Decision Date: 08 September 2021
• Docket Number: Index No. 51757, Index No. 517574/2020
• Parties: In the Matter of Richard A. BUCKHEIT, in his official capacity as Kings County Public Administrator, Petitioner, v. Harriet L. THOMPSON, in her official capacity as Kings County Surrogate, Respondent.
• Court: New York Supreme Court

73 Misc.3d 1201 (A)
152 N.Y.S.3d 563 (Table)

In the Matter of Richard A. BUCKHEIT, in his official capacity as Kings County Public Administrator, Petitioner,
v.
Harriet L. THOMPSON, in her official capacity as Kings County Surrogate, Respondent.

Index No. 51757, Index No. 517574/2020

Supreme Court, Kings County, New York.

Decided on September 8, 2021

Attorney For Petitioner, Brian Horan, Esq. Bhoran@law.nyc.gov

Attorney for Respondent, Andrea Caruso, Esq. Acaruso@abramslaw.com, Robert Spolzino, Esq. Rspolzino@abramslaw.com

Wayne P. Saitta, J.

The following papers read on this motion :

NYSCEF Doc Nos

Notice of Motion/Order to Show Cause/Petition/Affidavits (Affirmations) and Exhibits 34-37

Cross-motions Affidavits (Affirmations) and Exhibits 38-41

Answering Affidavit (Affirmation) 45-47

Reply Affidavit (Affirmation) 48-50

Supplemental Affidavit (Affirmation)

At issue in this Article 78 proceeding is whether Respondent, one of two Judges of the Surrogate's Court of Kings County, has the authority to suspend the Petitioner, the Public Administrator of Kings County, from handling cases in her inventory, and to authorize the Deputy Public Administrator to handle her cases in his place.

The discord between Petitioner and Respondent appears to have had its genesis in May of 2019, when Respondent submitted a commentary to the Petitioner's Annual Report for 2018.

Section 207.63(a) of the Uniform Rules for the Surrogate's Court provides that each Surrogate shall request from the Public Administrator a year end annual report. Section 207.63(b) of the rule provides that the Surrogate shall transmit the report to the Chief Administrator of the Courts together with whatever commentary the Surrogate deems appropriate.

Respondent's commentary contained numerous criticisms of Petitioner's management of the office. Among the criticisms, Respondent commented that employees in the Public Administrator's Office had complained to her

"that the Public Administrator engages in daily repeated conduct that has produced ‘fear and intimidation’, a ‘hostile work environment’, and ‘demeaning and derogatory comments’ and ‘demeaning and derogatory actions toward individuals of African American descent’ ".

Respondent noted that similar claims of racial bias and discrimination were made under the administration of her predecessor but were found unsubstantiated. Respondent recommended that the claims of racial discrimination be investigated by an "independent individual".

Respondent also criticized various deficiencies in the office's accounting, vouchering and record keeping procedures, and also recommended that an independent accountant be employed in the Petitioner's office.

Petitioner sent a response to Respondent's commentary, dated July 10, 2019, to the Chief Administrative Judge Lawrence Marks in which he contested Respondents comments. Petitioner stated that Respondent's comments were based on "unsubstantiated hearsay allegations, made by disgruntled employees" and noted that the claims of discrimination made against his office under the prior Surrogate were found to be unsubstantiated. Petitioner also stated that Respondent had ignored the improvements that he had made in office procedures. He stated that such improvements included promulgation of a financial procedure manual, regular bank reconciliations and investigation, and reissuance of outstanding checks. Petitioner also stated that since January 2015, the office had completed ten years’ worth of annual audits covering the years 2008-2017.

Petitioner concluded his response by stating,

"However, with all due respect, with Surrogate Thompson having been in her position for just six months it is clear she neither possesses the knowledge, experience or understanding to properly evaluate the operations of the Public Administrator's office".

Subsequently, on September 16, 2019, Respondent was presented with an application to sign an Order to Show Cause to hold Petitioner in contempt for failing to pay a legal fee to Armena Gayle Esq. The fee had been approved and ordered by Respondent based on Ms. Gayle's work as Petitioner's counsel in the matter of the Estate of Mikhail Kaplun. Before deciding whether to sign the Order to Show Cause, Respondent summoned Petitioner to her courtroom to explain why the payment had not been made.

Petitioner had issued the check on August 9, 2019, but he had withheld it from Ms. Gayle to pressure her to take an action in a different case. Petitioner had wanted Ms. Gayle to ask a prior administrator in that other case to reissue certain checks. Ms. Gayle believed that those checks had been received by the Public Administrator's office, while Petitioner maintained that there was no record that the checks were received.

After a somewhat contentious exchange between Petitioner and Respondent on the record, Respondent delivered the check to Ms. Gayle in open court.

Respondent also asserted that the Public Administrator's Report on Settled Accounts for August 2019 falsely represented that estate was closed, when in fact the Petitioner had not delivered the check to Ms. Gayle

Respondent did not sign the Order to Show Cause for contempt but indicated that she was going to suspend Petitioner from any cases in her inventory. It is disputed between the parties whether Respondent's statements on the record on September 19, 2019 constituted a final order.

A meeting took place on January 7, 2020, attended by Chief Administrative Judge Lawrence Marks, Respondent and Petitioner, in an attempt to resolve the issues between the two, but no resolution was reached.

On February 20, 2020, Respondent issued a letter to the staff of the Public Administrator's office stating that she had suspended Petitioner from her inventory of cases and that Petitioner, and some staff members, were not complying her Order. The letter further indicated that sanctions, including civil or criminal contempt, could be invoked against staff working with Petitioner on any matter involving estates in Respondent's inventory.

On May 18, 2020, Respondent issued an Administrative Order formally suspending Petitioner from handling matters in connection with estates in Respondent's inventory. The Order provided that Petitioner was restrained from acting in any manner on any estate in Respondent's inventory. The Administrative Order also ordered that the Deputy Public Administrator was authorized to administer the estates in Respondent's inventory and to access the suspense account maintained by the Public Administrator's office.

On May 20, 2020, the other Surrogate of the county issued an Order countermanding Respondent's Order and directing that the Deputy Public Administrator...