Estate of Rappaport, Matter of

• Citation: 542 N.Y.S.2d 215,150 A.D.2d 779
• Parties: In the Matter of the ESTATE of Jay B. RAPPAPORT, deceased. Alfred D. Rappaport, Appellant; Charmi Mirsky, et al., Respondents.
• Decision Date: 30 May 1989
• Court: New York Supreme Court — Appellate Division

Page 215

542 N.Y.S.2d 215

150 A.D.2d 779

In the Matter of the ESTATE of Jay B. RAPPAPORT, deceased.

Alfred D. Rappaport, Appellant;

Charmi Mirsky, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

May 30, 1989.

Thomas A. Andrews, New York City, for appellant.

LeBoeuf, Lamb, Leiby & MacRae, New York City (Marshall M. Green, Ellen August, Marc Stern and Joyce H. Kline, of counsel), for respondent Charmi Mirsky.

Jaspan, Ginsberg, Ehrlich, Schlesinger & Hoffman, Garden City (Joseph Jaspan and Helly Juster, of counsel), for respondent Bertram Harnett.

Hogan & Hogan, Locust Valley (Paul S. Flaxman, of counsel), for respondent Estate of Gay Fehrenbach.

Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., Uniondale (John J. Barnosky and John R. Morken, of counsel), respondent pro se.

Moses & Singer, New York City (Irving Sitnick, Bruce Wexler and David Rabinowitz, of counsel), respondent pro se.

Before BROWN, LAWRENCE, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding for a judicial settlement of the account of the fiduciaries of the estate of Jay B. Rappaport, deceased, Alfred D. Rappaport appeals, as limited by his brief, from stated portions of a decree of the Surrogate's Court, Nassau County (Harrington, S.), dated December 6, 1988, which, after a hearing, inter alia, settled the account of Charmi Mirsky and Bertram Harnett.

ORDERED that the decree is affirmed insofar as appealed from, with one bill of costs payable by the appellant personally.

The decedent died May 22, 1976. He was survived by his wife, two daughters, i.e., Charmi Mirsky and Gay Fehrenbach, now deceased, and a son, the appellant. By his will, he left the family residences to his wife. He bequeathed the residuary estate in two parts. Part I consisted of a marital share of 50% of the adjusted gross estate, bequeathed to his wife. Part II, the balance of the residuary estate, was divided in equal shares among his three children. The decedent's wife assigned her marital share to the appellant. For over 10 years, the estate has been subjected to protracted litigation which has generated enormous legal fees (see, e.g., Matter of Rappaport, 121 Misc.2d 447, 467 N.Y.S.2d 814).

The appellant contends that the court improperly refused to permit him to represent himself at the hearing. In a prior proceeding regarding the administration of this estate, the Surrogate (Radigan, S.), in a lengthy decision, expressed countless reasons for not permitting the appellant to represent himself. For instance, during a hearing before Surrogate Radigan the appellant physically assaulted an attorney and so disrupted the proceedings that the court was required to request three court officers from the County Court in addition to the Surrogate Court's own court officer to attend several sessions to aid in keeping order (see, Estate of Rappaport, NYLJ, June 29, 1981, at 16, col 3). The record amply shows the appellant's disrespect for the court and also demonstrates that, in seeking to represent himself, he was not acting in good faith, but was rather attempting to disrupt the proceedings (see, People v. McIntyre, 36 N.Y.2d 10, 364 N.Y.S.2d 837, 324 N.E.2d 322). Acting Surrogate Harrington mistakenly announced that the doctrine of law of the case prevented the appellant from appearing in his own behalf in any later proceedings, because the law of the case doctrine applies to legal rulings rather than discretionary findings (see, People v. Wright, 104 Misc.2d 911, 429 N.Y.S.2d 993). Nonetheless, there is ample justification in the record to support the Acting Surrogate's determination that the appellant could no longer represent himself in any proceeding in connection with the administration of this estate. We note that the appellant was ably represented by counsel at the hearing, although his attorneys appeared for him only in his fiduciary capacity.

We also reject the petitioner's contention that he was entitled to a jury trial regarding the issue of whether he misappropriated $115,000 of the funds of the estate. There is no right to a jury trial where the cause of action is to recover damages for a breach of fiduciary duty, which sounds in equity (see, Trepuk v. Frank, 104 A.D.2d 780, 480 N.Y.S.2d 889; Matter of Coyle, 34 A.D.2d 612, 308 N.Y.S.2d 899).

The appellant argues that a stipulation entered into on December 27, 1983, is unenforceable. Paragraph 4 of that stipulation provides:

"The parties agree that the estate assets will be distributed to the beneficiaries in the proportions agreed to herein within 60 days except for a reserve to be held in the estate for income and estate taxes, creditors' claims and other liabilities".

Owing to the acrimonious relationship between the appellant and his sisters, no agreement could be reached regarding the...