El-Dehdan v. El-Dehdan

CourtNew York Supreme Court Appellate Division
Citation114 A.D.3d 4,2013 N.Y. Slip Op. 08404,978 N.Y.S.2d 239
PartiesJacqueline EL–DEHDAN, respondent, v. Salim EL–DEHDAN, also known as Sam Reed, appellant.
Decision Date18 December 2013

114 A.D.3d 4
978 N.Y.S.2d 239
2013 N.Y. Slip Op. 08404

Jacqueline EL–DEHDAN, respondent,
Salim EL–DEHDAN, also known as Sam Reed, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 18, 2013.

[978 N.Y.S.2d 242]

Barket Marion Epstein & Kearon, LLC, Garden City, N.Y. (Bruce A. Barket and Brad A. Schlossberg of counsel), for appellant.

Alomar & Associates, P.C., Ridgewood, N.Y. (Karina E. Alomar of counsel), for respondent.



In this matrimonial action, the Supreme Court held the defendant in contempt of court for disobeying a court order dated January 29, 2010, which required him to deposit with the plaintiff's attorney the proceeds of a certain real estate transaction and imposed a civil sanction which allowed him to purge the contempt to avoid incarceration. The defendant appeals, contending that the plaintiff failed to

[978 N.Y.S.2d 243]

satisfy her burden of proof and that the Supreme Court improperly drew an adverse inference against him for invoking his privilege against self-incrimination during the contempt hearing. In addressing these contentions, we take this opportunity to clarify the parties' relative burdens of proof where the alleged contemnor has invoked the constitutional privilege against self-incrimination, and to harmonize inconsistencies in the case law with respect to the elements of civil contempt. We conclude that the defendant's contentions are without merit and affirm the order holding him in contempt.

The parties were married in Lebanon in 1982 and have two adult children. Throughout their lengthy marriage, the parties acquired substantial marital property and had a dry cleaning business. Two parcels of real property are relevant to the issues in this appeal: a parcel on Ainslie Street in Brooklyn (hereinafter the Brooklyn property), and a parcel on 60th Road in Maspeth, Queens (hereinafter the Queens property).

In 2008, the plaintiff commenced this action and moved for pendente lite relief. The defendant cross-moved to dismiss the action on the ground of res judicata based on a judgment entered in Lebanon in 2000 and a Kings County divorce action allegedly dismissed with prejudice in 2001. At a hearing on February 4, 2009, the Supreme Court informed the defendant that, regardless of its ultimate determination on the validity of the Lebanese divorce, that judgment did not resolve issues of equitable distribution, which would be submitted to a referee for an evidentiary hearing. Shortly thereafter, unbeknownst to the court or the plaintiff, the defendant transferred ownership of the two subject parcels of real property. On February 24, 2009, the defendant entered into a contract to sell the Brooklyn property for $950,000 to Zackmaxie, LLC (hereinafter Zackmaxie), and the transfer was completed by deed dated March 31, 2009 (hereinafter the March 2009 transfer). On April 6, 2009, he transferred the Queens property by deed to Mustafa Othman, apparently without consideration (hereinafter the April 2009 transfer).

Thereafter, when the defendant failed to appear for further proceedings, the court denied his motion to dismiss and referred the matter to the referee for an inquest on the grounds for divorce and equitable distribution. Prior to the inquest, an Internet search conducted by the plaintiff's attorney failed to reveal either the March 2009 transfer or the April 2009 transfer. The defendant failed to appear at the inquest, which went forward without him.

On December 4, 2009, the referee issued findings of fact and a determination which awarded the plaintiff a divorce on the ground of cruel and inhuman treatment and provided for equitable distribution, awarding her, among other things, the Brooklyn and Queens properties. Shortly thereafter, the plaintiff learned of the March 2009 transfer and the April 2009 transfer. On January 29, 2010, on the plaintiff's motion, the Supreme Court issued an order (hereinafter the January 2010 Order), which directed the defendant to “deposit immediately” with the plaintiff's attorney the net proceeds of the March 2009 transfer, that is, “the sum of nine hundred fifty thousand ($950,000.00) dollars ..., minus the money paid for real estate broker, transfer taxes and payment of the underlying mortgage.” It is undisputed that the defendant failed to deposit the proceeds of the March 2009 transfer with the plaintiff's attorney. In August 2010, the plaintiff moved to hold the defendant in civil and criminal contempt for violating the January 2010 Order.

[978 N.Y.S.2d 244]

In determining the contempt motion, the Supreme Court considered, among other things, the plaintiff's testimony at the inquest, documents, and exhibits which established the following. The parties initially acquired the Brooklyn property as tenants by the entirety in 1989; they satisfied the first mortgage in 1997; the defendant forged the plaintiff's signature and transferred the property to himself alone in 1998; the defendant transferred the property to his sister and nephew in 1999; the sister and nephew transferred it back to the defendant in 2002; the defendant executed a deed from himself, as “Salim Dahdan,” to himself, as “Sam Reed,” in 2003; he obtained a $250,000 mortgage loan from Emigrant Mortgage Company, Inc., in 2007; and the final tax assessment roll for 2009 listed the defendant as the owner. The defendant acquired the Queens property in his name alone in 1999; he executed a deed from himself, as “Salim Dahdan,” to himself, as “Sam Reed,” in 2003; and the final tax assessment roll for 2009 listed Mustafa Othman as the owner.

With respect to the March 2009 transfer of the Brooklyn property, the closing statement of the purchaser's attorney, dated March 31, 2009, showed that the defendant received net proceeds in the sum of $776,046.21, comprising the initial down payment of $150,000, a subsequent down payment of $110,000, and a wire transfer of $516,046.21, representing the balance due after other deductions and credits, including a mortgage payoff of $247,590.79 to Emigrant Mortgage Company, Inc. A handwritten notation in the margin next to the wire transfer stated, “Sam Reed, To Account Washington Mutual, 4894318637, 3/31/09.” The deed was recorded on June 3, 2009, but a computer printout from the New York City Automated City Register Information System (ACRIS) had no record of a satisfaction of mortgage. On June 16, 2009, the new owner, Zackmaxie, obtained a mortgage loan from Signature Bank for $675,000, which was not recorded until October 29, 2009, 20 days after the inquest on the issue of equitable distribution was conducted. A representative of Zackmaxie informed the plaintiff's attorney that the balance due for the March 2009 transfer was not paid to the defendant until Zackmaxie obtained the new mortgage loan in June 2009.

In opposition to the plaintiff's motion to hold him in contempt, the defendant submitted an affidavit, in which he averred that he no longer possessed the proceeds of the March 2009 transfer.

On February 4, 2011, at the contempt hearing before the referee who was appointed to hear the issue, the defendant conceded that he had received a copy of the January 2010 Order and that he had not deposited any money with the plaintiff's attorney pursuant to that order. He stipulated to the admission into evidence of all relevant documents and evidence concerning the Brooklyn property and the March 2009 transfer, including the closing statement. The defendant invoked his constitutional privilege against self-incrimination in response to all questions relating to the proceeds of the March 2009 transfer, and whether he owned an account at Washington Mutual.

The referee made findings that the defendant had dissipated marital assets and may have transferred assets without fair consideration after the plaintiff commenced this action, but recommended denial of the motion on the ground that the plaintiff had failed to meet her burden of establishing either civil or criminal contempt. In an order dated September 12, 2011, the Supreme Court granted the plaintiff's motion to set aside the referee's report and recommendation, determining that the referee's findings were not supported

[978 N.Y.S.2d 245]

by the record and that the defendant was in contempt of court by failing to abide by the terms of the January 2010 Order. The court found that the requirements to hold the defendant in civil contempt had been satisfied because the defendant was aware of the lawful and unequivocal requirements of the January 2010 Order, and disobeyed that order with full knowledge of its terms. The court also noted that while the defendant was entitled to rely upon his constitutional privilege against self-incrimination in response to questions relating to the proceeds of the March 2009 transfer, the privilege did not protect him from the consequences of his failure to submit competent proof that he had no access to the proceeds. The court directed that the defendant could purge his contempt and avoid imprisonment by complying with certain conditions, including the payment of the proceeds from the March 2009 transfer. The court did not impose the criminal sanction of a definite jail term without the opportunity to purge the contempt, thus granting, in effect, only that branch of the plaintiff's motion which was to find the defendant in civil contempt ( see Matter of Rubackin v. Rubackin, 62 A.D.3d 11, 15–16, 875 N.Y.S.2d 90). Thus, we now turn to an analysis of the elements and burden of proof on a civil contempt motion to determine if the plaintiff met her burden with respect to that branch of her motion.

The Elements of Civil Contempt and the Burden of Proof

The defendant contends that the plaintiff failed to satisfy her burden of establishing civil contempt because the March 2009 transfer did not violate any court order and the plaintiff failed to...

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