Burns v. Burns

• Decision Date: 31 January 2022
• Docket Number: Index 37327/07
• Citation: 2022 NY Slip Op 30330 (U)
• Parties: Lours Burns, Plaintiff; v. Stephanie Burns, Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 30330(U)

Lours Burns, Plaintiff; v. Stephanie Burns, Defendant.

Index No. 37327/07

Supreme Court, Kings County

January 31, 2022

Unpublished Opinion

HON LAWRENCE KNIPEL, JUSTICE

The following e-filed papers read herein:

NYSCEF Doc. Nos.

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed

7-9

Opposing Affidavits (Affirmations)

10-12

Reply Affidavits (Affirmations)

13

Upon the foregoing papers in this action to impose a constructive trust, for an accounting and to recover damages for breach of contract, plaintiff Louis Burns (plaintiff) moves (in motion sequence [mot. seq.] 38) for an order: (1) punishing defendant Stephanie Burns (defendant) for contempt of court for her failure to provide an accounting, pursuant to the Appellate Division, Second Department's July 10, 2019 order (2019 Appellate Order); (2) imposing sanctions against defendant; (3) granting plaintiff a judgment against defendant "in such an amount as the accounting provider"; and (4) awarding plaintiff reasonable attorneys' fees and disbursements.

Background

This action arises out of a February 25, 2002 agreement (2002 Agreement), pursuant to which plaintiff agreed to: transfer ownership of two parcels of real property at 256: Decatur Street (Decatur Property) and 198 Clarkson Avenue (Clarkson Property) in Brooklyn (collectively, the Properties) to defendant, while plaintiff retained a life: estate in both Properties. Under the 2002 Agreement, defendant agreed that she would not mortgage, lease, sell, rent, encumber or transfer either of the Properties without plaintiffs express written consent.

In October 2007, plaintiff commenced this action alleging that defendant mortgaged the Properties without his consent and used the mortgage proceeds for her own purposes. In an amended complaint, plaintiff alleged that defendant used the proceeds of the improperly obtained mortgages to purchase an additional property at 885A Putnam Avenue in Brooklyn (Putnam Property) and refused to account to plaintiff for the income from the Decatur and Clarkson Properties. The first and second causes of action in the amended complaint were for breach of the 2002 Agreement and a constructive trust on the Decatur and Clarkson Properties, respectively. The third cause of action in the amended complaint sought an accounting regarding the Decatur and Clarkson Properties and the fourth cause of action sought the imposition of a constructive trust on the Putnam Property. The amended complaint also requested an award of punitive damages and attorney's fees.

Following an August 2017 bench trial, this court issued a July 31. 2018 judgment (2018 Judgment) determining that defendant breached the 2002 Agreement, plaintiff was entitled to a constructive trust regarding the Decatur and Clarkson Properties and directing defendant to convey the Decatur and Clarkson Properties to plaintiff. The 2019 Judgment dismissed the third cause of action for an accounting, the fourth cause of action for a constructive trust regarding the Putnam Property and denied plaintiffs request for punitive damages and attorneys' fees.

On September 4, 2018, plaintiff appealed from this court's 2018 Judgment.

The 2019 Appellate Order

By the 2019 Appellate Order, the Second Department modified this court's 2018 Judgment by deleting the provision that dismissed the third cause of action in the amended complaint for an accounting, substituting a provision granting plaintiffs third cause of action and remitting the matter back to this court "for the entry of an amended judgment directing an accounting to determine the amount to which the plaintiff is entitled" (see Burns v Bums, 174 A.D.3d 570, 570 [2019]). Other than this: modification, the 2018 Judgment was affirmed; The Second Department specifically held that:

"Here, the Supreme Court's imposition of a constructive trust as to the Decatur and Clarkson properties without also granting an accounting to determine the amount to which the plaintiff is entitled, was not 'appropriate to the proof received (CPLR 3017 [a]; see Palazzo v Palazzo, 121 A.D.2d 261, 264, 503 N.Y.S.2d 381). The trial evidence established that the Decatur and Clarkson properties remained encumbered by several mortgages improperly given "by the defendant. An accounting to ascertain the values of the properties, the mortgages, and any rental or other income derived from the properties that was improperly withheld by the defendant was necessary to grant complete relief to the plaintiff in accordance with the equities of the case (see Palazzo v Palazzo, 121 A.D.2d at 264, 503 N.Y.S.2d 381). Accordingly, the accounting sought in the plaintiffs third cause of action should have been granted, and we remit the matter to the Supreme Court, Kings County, for further proceedings on that cause of action.

"We agree with the Supreme Court's determination not to impose a constructive trust on the Putnam property since the plaintiff never had any interest in that property (see Mazzel v. Kyriacou, 139 A.D.3d 823, 824, 33 N.Y.S.3d 291; Liselli v. Liselli, 263 A.D.2d 468 469, 693 N.Y.S.2d 195). We also agree with the court's determination to deny the plaintiff s requests for punitive damages and attorneys' fees, since he failed to demonstrate his entitlement to such relief (see JPMorgan Chase Bank, N.A. v Corrado, 162 A.D.3d 994, 996, 80 N.Y.S.3d 366; Abizadeh v Abizadeh, 159 A.D.3d 858 860, 72 N.Y.S.3d 563; Vested Bus, Brokers, Ltd. v Ragone, 131 A.D.3d 1232, 1234.1235, 17 N.Y.S.3d 447)” (id. at 571-572 [emphasis added]).

Plaintiffs Instant Motion

On November 9, 2021, plaintiff filed the instant motion seeking an order punishing defendant for contempt of court for her failure to provide an accounting pursuant to the 2019 Appellate Order, imposing sanctions on defendant, granting him a judgment against defendant "in such amount as [plaintiffs: substitute] accounting provides" and awarding him $430, 000.00 in "reasonable" attorneys' fees and disbursements "which represents 25% of the sum by which defendant was unjustly enriched."

Plaintiff submits an attorney affirmation asserting that the 2019 Appellate Order "directed Stephanie Burns to provide [an] accounting for the years that she collected the rents on the two properties, which belonged to the plaintiff and "she has refused to provide [an] accounting," Plaintiff s counsel submits two exhibits: (1) the 2019 Appellate Order, and (2) defendant's “Schedule E" to her personal tax returns for the years 2003 and 2005 through 2014, which defendant produced "with regard to rents [she] received" from the Decatur and Clarkson Properties in response die'.plaintiffs second set of interrogatories. Plaintiffs counsel notes that "[defendant did not submit any tax returns for the years 2004, 2005 or 2016[.]" and asserts that “[h]er response with regard: to 'expenses' is approximately 200 pages of unexplained receipts." Plaintiffs counsel asserts that "Defendants' responses refuse to account for the proceeds of the mortgage regarding the mortgage money that was used to purchase the defendant's present residence[.]" and "defendant never sought an Order of Protection." Plaintiffs counsel argues that:

"SEPHANIE BURNS HAS INTENTIONALLY AND VOLUNTARILY MADE HERSELF INCAPABLE OF PROVIDING AN ACCOUNTING OF THE MONIES THAT SHE RECEIVED FROM THE MORTGAGES AND THE RENTS."

Plaintiffs counsel reproduces in the body of his affirmation purported "excerpts" “[f]rom the transcript of the testimony of Stephanie Bums on February 23, 2016" without producing a copy of the official transcript Or providing any explanation why defendant's 2016 testimony is relevant to plaintiff s instant motion to hold defendant in contempt of the 2019 Appellate Order. Plaintiffs counsel also references and purports to quote this court from the: trial transcript without annexing a copy the transcript to his moving papers.

Plaintiffs counsel requests that this Court accept plaintiffs "substitute" accounting in the absence of an accounting from defendant. Plaintiffs counsel explains that plaintiff s "substitute" accounting is based on: (1) defendant's reported rents she received in: 2003 and 2005 through 2014, as reflected in her Schedule E to her tax returns; (2) plaintiffs estimates of rent defendant may have received for the ''missing years" (2004, 2005 and 2016); (3) plaintiffs estimates of defendant's operating expenses (approximately 2/3 of rent) based on a "published study" entitled "Housing NYC Rent, Market 2021," a copy of which is not annexed to plaintiff s moving papers; (4) plaintiffs suggestion of 6% annual interest from 2003 through 2016, compounded; and (5) an unidentified "stipulation" pursuant to which the parties' purportedly agreed that defendant "over mortgaged" the Properties by $577, 000.00, a copy of which is not annexed to plaintiffs moving papers.

Defendant's Opposition

Defendant in opposition, submits an attorney affirmation arguing that "[procedurally, this motion is improper as it seeks relief for an alleged contempt of an Appellate Division order from the Supreme Court[, ]" which is "patently improper and should be denied without any further review:" Defense counsel further notes that "[t]here is no language contained within the Decision of the Appellate Division that would permit a motion for contempt.... ." because “[n]o part of that order requires a specific action of the Defendant at all and Plaintiffs motion attempts to create a false obligation on Defendant that simply does not exist." Defense counsel quotes the 201.9 Appellate Order, which...