MATTER OF MANNIX v. MURPHY

Tuesday, May 29, 2001

Supreme Court

Westchester County

Justice Lefkowitz

MATTER OF MANNIX v. MURPHY“Petitioner presents three motions in a post judgment proceeding and respondent purports to cross-move. Petitioner seeks: (1) an order of contempt for failure to attend a post judgment deposition; (2) to amend the caption to reflect a successor executor for the deceased executor; and (3) an order granting the petition to enforce a judgment lien against homestead property. The alleged cross-motion is to disqualify counsel because a member of petitioner’s law firm once represented respondent in an unrelated personal injury matter.

The genesis of the aforementioned activity is as a result of respondent’s actions, with her former husband and their children in defrauding Louise Metz, deceased. In 1985, Acting Surrogate of Westchester County, James D. Benson, concluded in a discovery proceeding that approximately $100,000 of Ms. Metz’s money was wrongfully taken by respondent and Mr. Murphy four months prior to Ms. Metz’s death in July 1976. Of that sum, $82,253.44 was deposited in a Toten Trust in United Dominions Trust (Ireland) Limited in the name of the decedent for the children of the Murphys and $17,599.38 was received by respondent and Mr. Murphy. Judge Benson held that the executor was entitled to recover all of the monies ($99,852.82):

“Now in possession and control of the respondents as follows:

A. The sum of $82,253.44 plus accumulated interest in possession and control of respondents, United Dominions Trust Bank Limited, Dublin, Republic of Ireland, Sean Murphy and Brendan Murphy.

B. The sum of $17,599.38 plus interest thereon in possession and control of respondents, Ann Murphy and John Murphy.

The Court will direct all of said respondents, within twenty (20) days after service upon them of a certified copy of the decree hereunder to pay and deliver said monies and property to James M. Mannix, Jr., as executor under the Last Will and Testament of the decedent herein.” (Decision, January 24, 1985, p. 7; emphasis added.)

Thereafter, on February 13, 1985, Judge Benson executed the decree which provided in pertinent part:

“ORDERED, ADJUDGED AND DECREED that respondents United Dominions Trust Bank Limited, Sean Murphy, and Brendan Murphy deliver to the petitioner, James M. Mannix, Jr., as Executor, within twenty (20) days after service of a certified copy of this Decree, the sum of $82,253.44, plus all interest actually accumulated thereon by the respondent, United Dominions Trust Bank Limited, together with statutory interest thereon in the additional sum of $52,064.15, and it is further

ORDERED, ADJUDGED AND DECREED that respondents Ann Murphy and John Murphy deliver to the petitioner, James M. Mannix, Jr., as Executor, within twenty (20) days after service of a certified copy of this Decree, the sum of $17,599.38 plus statutory interest in the sum of $11,428.71,”

An appeal from the decree was dismissed by the Appellate Division, Second Department for lack of prosecution. Subsequently, in 1994, one of the children moved in the Surrogate’s Court, Westchester County, to resettle and modify the decree to eliminate statutory interest. The motion was denied by Surrogate Emanuelli on September 14, 1994.

The motion for contempt is denied. While movant makes a case for respondent’s intentional violation of a court order, the Court gives respondent the benefit of doubt that her failure to attend the court ordered deposition was based upon her mistaken notion of a conflict of interest in petitioner’s counsel’s office, notwithstanding contrary legal advice from her own attorney who she then discharged. Shortly thereafter, the executor died which automatically stayed discovery.

Respondent is directed to appear for deposition at petitioner’s counsel’s office on June 13, 2001 at 10:00 A.M. and she is to bring all financial records previously subpoenaed.