| Matter of Claydon |
| 2013 NY Slip Op 01301 [103 AD3d 1051] |
| February 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Helen S. Claydon, Deceased. Linda A.Lyons, as Successor Executor of Helen S. Claydon, Deceased, Respondent. Daniel A.Ehring, Appellant. |
—[*1] Joshua A. Sabo, Troy, for respondent.
McCarthy, J. Appeals (1) from an order of the Surrogate's Court of Albany County(Doyle, S.), entered September 27, 2011, which granted petitioner's motion to, amongother things, hold Daniel A. Ehring in civil contempt, and (2) from an order of said court,entered December 2, 2011, which directed Ehring to pay legal fees and costs.
Daniel A. Ehring served as executor of decedent's estate until he was removed bySurrogate's Court in 2002. In March 2005, the court found that Ehring was negligent andbreached his fiduciary duty to the estate, causing damages in the amount of $357,878.95.A transcript of the judgment was filed by petitioner in the Albany County Clerk's office.
In an effort to enforce the judgment, petitioner served Ehring with a subpoenadirecting him to appear at a deposition and produce certain financial documents,including bank records and tax returns, from 2005 through 2010. Ehring appeared at thedeposition but did not bring any bank records and brought only redacted copies of his2008 and 2009 federal tax returns. He testified that he was unsure of the location of histax returns for previous years. He also testified that he did not have any personal bankaccounts or mutual fund accounts and had only one [*2]business checking account entitled "Law Office of DanielEhring." Ehring refused to produce canceled checks from the account because hebelieved that it would violate a disciplinary rule regarding client confidentiality.
Based upon Ehring's failure to testify truthfully and produce the subpoenaeddocuments, petitioner moved for a finding of civil contempt, an order that Ehringproduce the documents and the payment of a fine to the estate. Surrogate's Court foundEhring in civil contempt and ordered him to produce, among other things, copies of allcanceled checks from any bank account under his control and unredacted state andfederal tax returns.[FN1] The court also directed him to pay a fine of $344 per week from September 9, 2010 untilthe date of the order, September 27, 2011, as well as the estate's legal fees and costsassociated with the contempt motion. In a subsequent order, the court set the amount ofthose fees and costs at $2,987.50. Ehring appeals from both orders.
Surrogate's Court did not err in holding Ehring in civil contempt. "To sustain a civilcontempt, a lawful judicial order expressing an unequivocal mandate must have been ineffect and disobeyed," "the party to be held in contempt must have had knowledge of theorder," and the rights of a party must have been prejudiced (McCain v Dinkins,84 NY2d 216, 226 [1994]; see Judiciary Law § 753 [A]; Levy v Morgan, 92 AD3d1118, 1121 [2012]). The subpoena unequivocally demanded production of certaindocuments that Ehring did not produce. Ehring had knowledge of the subpoena, asevidenced by his appearance at the deposition and his testimony concerning thedemanded documents. The estate's counsel averred that the estate's ability to collect on itsjudgment was impaired and impeded by Ehring's failure to testify truthfully about hisassets and produce the financial documents listed in the subpoena.
Ehring argues that he did not disobey the subpoena because he testified truthfully,and that the subpoena was not a lawful order. Surrogate's Court found incredible Ehring'stestimony that he was unsure of the location of his own tax returns, considering thatEhring is an attorney who also prepares tax returns for others as part of his business.Ehring also testified, rather unbelievably, that he could not recall the names of his threebiggest clients from the past year or the name of a single case in active litigation in whichhe was counsel of record, despite testifying that he was a litigator.[FN2] The court reasonably concluded that Ehring's testimony was not truthful, but wasintended to evade collection of the judgment. Even if all of his testimony weretruthful—and we are not in any way suggesting that it was—Ehring stilldisobeyed the subpoena by failing to produce the demanded documents. He redacted his2008 and 2009 federal tax returns,[FN3] stated that he could not locate the returns from 2005 through 2007, and did not produceor even [*3]mention any of his state tax returns. He didnot produce any bank account documents, despite his testimony that he had a businesschecking account. In his opposition to the contempt motion, he—for the firsttime—produced a partial page of a bank account statement showing a commercialaccount with a slightly different name than the one he testified to, but he still did notproduce the records of that account and the partial page did not include the bank accountnumber.[FN4]
Ehring never challenged the subpoena by moving to quash or modify it (seeCPLR 2304). Although Ehring asserted that he had a legitimate reason for not providingthe bank records, namely the possible violation of client confidentiality (seeRules of Professional Conduct [22 NYCRR 1200.0] rule 1.6), he never providedredacted records as he offered to do, nor did he support his assertion that the recordscontained confidential information. The identity of an attorney's clients is generally notprivileged information, nor are fee arrangements as they are not directly relevant to thesubject matter of representation or to legal advice that may be given (see Matter of Nassau CountyGrand Jury Subpoena Duces Tecum Dated June 24, 2003, 4 NY3d 665, 679[2005]; Hoopes v Carota, 74 NY2d 716, 717 [1989]; Matter of Priest vHennessy, 51 NY2d 62, 69 [1980]; Oppenheimer v Oscar Shoes, 111 AD2d28, 29 [1985]). Thus, Surrogate's Court did not abuse its discretion by holding Ehring incivil contempt (see Judiciary Law § 753 [A] [3]; CPLR 5251; Matter of Aurelia v Aurelia, 56AD3d 963, 964 [2008]).
The amount of the fine imposed was supported by the record. Petitioner asserted thatthe unredacted portion of Ehring's 2009 income tax return showed that he had a grossincome from his law office of $179,118. Although Ehring contends that his net incomewas only $22,305.62 that year, CPLR 5231 permits a judgment creditor to garnish 10%of a judgment debtor's gross income. Based on Ehring's tax return, petitionerdemonstrated that if Ehring had produced the demanded information about his businessbank account, then petitioner could have been able to garnish 10% of his weekly grossincome of $3,442.30, or $344 per week, from that account. Judiciary Law § 773provides that if an actual loss or injury has been caused by the punished misconduct, theamount of the fine for civil contempt should be "sufficient to indemnify the aggrievedparty." The fine imposed by Surrogate's Court complies with this statute.
Surrogate's Court properly required Ehring to pay the legal fees associated with thecontempt motion. Counsel fees and costs that are attributable to the contemptuousconduct are recoverable (seeBell v White, 77 AD3d 1241, 1244 [2010], lv dismissed 16 NY3d 888[2011]; Jamie v Jamie, 19AD3d 330, 330-331 [2005]; see also Judiciary Law § 773). Petitionersubmitted an affidavit from counsel detailing his fees and costs directly associated withEhring's contemptuous conduct and Ehring never challenged the reasonableness of theamount of fees requested (seeMatter of Meier v Key-Meier, 36 AD3d 1001, 1004 [2007]). As there was no[*4]factual dispute and the matter could be resolved onthe papers alone, the court was not required to hold a hearing to determine the amount ofcounsel fees and costs (see Matter of Lembo v Mayendia-Valdes, 293 AD2d 789,790-791 [2002]; Bowie v Bowie, 182 AD2d 1049, 1050 [1992]).
Ehring's argument about recusal is not properly before us because it was raised forthe first time in his reply brief (see Giblin v Pine Ridge Log Homes, Inc., 42 AD3d 705,706 [2007]). Similarly, we will not consider his request that we vacate the March 2005order because that order is not on appeal; he apparently filed a notice of appeal from thatorder but never perfected it (seeEstate of Claydon v Ehring, 65 AD3d 723, 723 [2009]; see also Matter of Steele, 85AD3d 1375, 1376 [2011]).
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the orders are affirmed,with costs.
Footnote 1: The record does notdisclose whether Ehring complied with the portion of the order requiring him to producedocuments. He does not address that portion of the order on appeal.
Footnote 2: If Ehring was counselof record to a case in active litigation, his relationship to a client was already publicknowledge. Thus, he would have no legitimate objection that such question woulddisclose confidential information about clients.
Footnote 3: Ehring did not includethe redacted tax returns in the record, so we cannot determine whether any of theredactions were proper.
Footnote 4: Ehring correctly notesthat while the restraining notice to the bank listed the business name that Ehring testifiedto, the information subpoena served on the bank asked whether the bank had anyaccounts in Ehring's name individually. Despite petitioner's error in this regard, Ehringdid not testify to the exact name of the bank account and never provided an accountnumber. With that information that Ehring withheld, petitioner could have issued aneffective restraining notice.