The following papers have been read on this motion: Order to Show Cause for Contempt and Supporting Papers X Affirmation in Opposition to Motion for Contempt and Sanctions X DECISION AND ORDER ON MOTION Upon the foregoing papers, the motion brought by the Plaintiff, S.H. ["Plaintiff"], seeking an Order pursuant to Judiciary Law §§750 and 753 holding the Defendant, SEAN H. ["Defendant H."] in civil contempt and criminal contempt for violation of a stay order issued by this Court, dated February 9, 2023 ["Stay Order"], punishing Defendant H. for said alleged contempt, and pursuant to 22 NYCRR §130-1.1 awarding the Plaintiff counsel fees in the amount of $10,000.00, is determined as hereinafter follows: As discussed in greater detail by the Court’s prior Decisions and Orders in this matter, the Plaintiff and Defendant H. are brother and sister and are presently in dispute over the estate of their father, Decedent Richard H. [the "Decedent"]. By Decision and Order dated December 23, 2022, and entered on January 5, 2023, this Court granted Defendant H.’s motion pursuant to CPLR 325[e], removing the underlying action to the Surrogate’s Court of the State of New York, County of Queens, where the Decedent’s estate is being probated. The Plaintiff moved, by Order to Show Cause, to reargue the Court’s decision granting the motion to transfer. On February 9, 2023, the Court signed the Plaintiff’s Order to Show Cause [NYSCEF Doc. No. 44], and “Ordered that that [sic] Decision dated December 23, 2022, transferring this matter to Surrogates Court, be stayed, pending a hearing and/or determination of the Plaintiff’s motion for [sic] reargue”. (NYSCEF Doc. No. 44). The Plaintiff did not request, and the Court did not grant, an Order staying Defendant H. from proceeding in the Surrogate’s Court. By Decision and Order dated February 21, 2023, the Queens County Surrogate’s Court granted Defendant H.’s summary judgment motion and dismissed all of the Plaintiff’s objections to probate. By Decree Granting Probate entered on April 10, 2023 [hereinafter "Decree", copy of which attached as Exhibit 6 to Defendant H.'s opposition to motion], probate of the Decedent’s estate was granted and letters testamentary were issued to Defendant H.. With that Decree, Defendant H. became the Executor of the Decedent’s Estate. On April 24, 2023, Defendant H. commenced a proceeding in the Queens County Surrogate’s Court, pursuant to SCPA §2104, by filing a “Verified Petition for the Turnover of Property Belonging to the Decedent’s Estate” [the "Turnover Petition" or "Turnover Proceeding"]. Defendant H. opposed the Plaintiff’s motion for reargument and by Decision and Order dated July 31, 2023, and entered on August 2, 2023 [NYSCEF Doc. No. 67], this Court denied the Plaintiff’s motion to reargue. The Plaintiff argues that Defendant H. acted in contempt of the Court’s February 9, 2023 Stay Order by commencing the Turnover Proceeding in the Queens County Surrogate’s Court on April 24, 2023. However, the Court finds that the Plaintiff has failed to establish a basis to hold Defendant H. in civil or criminal contempt, as the Plaintiff has failed to establish that the Defendant disobeyed the Court’s February 9, 2023 Stay Order. [See, Judiciary Law §§753[a] [civil contempt] and 750[a] [criminal contempt]; see also, Bd. of Managers of Brightwater Towers Condominium v. M. Marin Restoration, Inc., 206 AD3d 605, 607-08 [2d Dept 2022]; Matter of Rubackin v. Rubackin, 62 AD3d 11, 18 [2d Dept 2009]). By its plain terms, the February 9, 2023 Stay Order stayed the transfer of the action commenced by the Plaintiff in this Court to the Queens County Surrogate’s Court. However, the Stay Order did not preclude Defendant H. from proceeding in the Queens County Surrogate’s Court and the Plaintiff failed to prove that Defendant H. disobeyed the Stay Order by commencing the Turnover Proceeding. Therefore, the Plaintiff’s motion for an Order pursuant to Judiciary Law §§750 and 753 holding Defendant H. in civil and criminal contempt shall be DENIED in its entirety. The Court finds that Defendant H. failed to establish a basis to impose sanctions on the Plaintiff pursuant to Rule 22 NYCRR §130-1.1 and the portion of Defendant H.’s opposition which seeks costs and fees is DENIED. Accordingly, it is hereby, ORDERED, that the Plaintiff’s Motion seeking an Order pursuant to CPLR §§750 and 753 holding Defendant Sean H. in civil and criminal contempt and awarding the Plaintiff counsel fees is DENIED in its entirety; and it is further, ORDERED, that Defendant H.’s request for the imposition of sanctions on the Plaintiff is likewise DENIED; and it is further, ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED. Dated: November 21, 2023
