ESTATE OF HAROLD ANTIN, Deceased (0111/2002) — This proceeding for contempt was brought by Dana Antin, a beneficiary of the estate of Harold Antin, against the executor, her brother Mark Antin, alleging that he failed to comply with this court's order dated September 8, 2009, (Webber, J.) which directed the distribution of tangible personal property in a turnover proceeding. Although many provisions of the order were effectuated, Dana asserts that the executor violated other provisions governing the distribution of certain silver items. These items, along with all of decedent's tangible personal property, had been bequeathed to Dana and Mark in equal shares. However, in the several years since decedent's death in 2002, Mark and Dana had been unable to agree on distribution and the property remained in a warehouse at the cost of mounting storage fees.

The court order was issued after a conference with the Acting Surrogate, during which the parties substantially agreed to the manner of distribution of the warehoused property, and the specific terms of the order were informed by their discussion and negotiation.

The order provided, inter alia, for Dana to provide certain funds to her counsel to hold in escrow until the final judicial settlement of the executor's account, subject, however, to the use of these funds to discharge any pending warehouse charges, and for Mark to provide like funds to be held in escrow by his own counsel, such funds to equal the appraised value of the items each of them was selecting. The order further provided that if Dana did not make her selection of items and pick them up within a two-week period, the property would be delivered to Mark to be sold or otherwise disposed of. With respect to the silver items, the order further provided that:

"Mark will divide the silver and silver plate items into two piles of approximately equal value pursuant to the existing appraisal. Dana will select one pile; the other will be Mark's. Dana may seek to exchange any items from her pile with items from Mark's pile. If the parties are unable to work out such an exchange, they may request a conference with the court, and neither party shall dispose of any disputed item pending such conference."

Thereafter, Mark advised the court that the order had been effectuated and that no conference was necessary. Dana's attorney informed the court that disputes about the silver had not been resolved, and he requested a conference. A conference was scheduled with a court attorney, but Mark did not appear.

This proceeding for contempt followed. Specifically, Dana alleges that Mark is in contempt of the court order because he failed to distribute the silver and failed to attend the scheduled conference.

Dana does not dispute the assertions in Mark's response that she did not comply with the process set by the court to distribute the silver. Nor did she accept an alternative proposition that Mark offered. Specifically, Mark asserts that after he divided the silver into two piles (A and B) of equal value, Dana did not select a pile or request the exchange of items from her selected pile (which request, under the order, Mark was not mandated to grant). Instead, Dana insisted that she receive certain items from both piles. Further, after initially objecting to providing funds or allowing their release to pay outstanding warehousing charges (issues on which she eventually relented), Dana calculated the amount due to include pieces which Mark was not agreeing she could have. Finally, Dana did not appear on the date arranged for her to pick up the silver items from the warehouse. Mark attaches voluminous correspondence (by e-mail and letter), some between the parties directly, others between their counsel,1 which document these disputes. In the correspondence, Mark repeatedly rebuked Dana for not selecting a pile, as the order directs, but, noting that she wanted more items from pile B than from pile A, he assumed that she had selected pile B. Acting on that assumption, Mark deemed pile A as his own and asserted his right under the order not to allow her all of the items that she also wanted from pile A. In the end, although the subject of the parties' dispute was reduced to only a handful of items in pile A worth a few hundred dollars, Dana did not accept this limitation and did not appear on the arranged date to pick up those items which the parties had agreed she could have.

With respect to the conference that had been scheduled by a court attorney, Mark pointed out in correspondence to Dana that the order contemplated a conference only if the parties had difficulties working out an exchange between the two piles they had selected. Accordingly, he asserted that, since Dana had failed to follow the procedure contemplated by the order, a conference was not required.

This court is authorized to punish a party for contempt if "he refuses or wilfully neglects to obey" an order "requiring the performance of any act..." (SCPA §606). However, the court cannot find a party in contempt of an order unless it "appear[s], with reasonable certainty, that the order has been disobeyed..." (McCormick v. Axelrod, 59 NY2d 574, 583 [1983]; see also, e.g., Pereira v. Pereira, 35 NY2d 301, 308 [1974]; Ketchum v. Edwards, 153 NY 534, 539 [1897]; Coan v. Coan, 86 AD2d 640, 641 [2d Dept, 1982], app dsmd 56 NY2d 804 [1982]). Furthermore, the order must express an unequivocal mandate (id.). On this record, the court cannot find that Mark violated the clear mandate of the court order. The order contained specific steps, including Dana's initial selection of one of the two piles of equally valued items, as prerequisites to distribution of the silver items. Mark was not required to accede to Dana's demand that she in effect be given first choice with respect to every item in both piles. Because Dana failed to carry out the prerequisite steps, Mark's subsequent refusal to distribute the silver does not constitute a violation of the order (see e.g. M.W. v. S.W., 15 Misc. 3d 1127[A], 2007 NY Slip Op 50872[U] \{Sup Ct, Westchester County, 2007]). Nor did the order require attendance at a court conference unless requested by both parties to effectuate the exchange provisions as set out in the order, which provisions Dana attempted to sidestep. This proceeding to hold Mark in contempt is therefore dismissed.

Mark's papers do not reveal the current status or location of the silver. The disposition of the silver thus remains an issue for the final accounting in this estate.

This decision constitutes the order of the court.

December 3, 2012

1. During the course of the dispute, in view of the mounting legal fees, Mark's attorney withdrew from representing him in this matter, and Mark proceeded pro se.