Richard Blumenthal, Attorney General v. June Getraer et al. (2011)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE:

This is a sad and unusual case.   The charitable trust involved had a high purpose, to honor a long time, admired and respected member of the Beth Israel Synagogue (hereinafter also “Synagogue”), Joseph Getraer, and to provide funds for capital improvements for the Synagogue, but degenerated into a fund the circumstances around which involved bitterness and chicanery.

The Attorney General of the State of Connecticut has brought this declaratory judgment action under C.G.S. § 3–125 representing “the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes.”

Joseph Getraer, (hereinafter also “Joseph”), a prominent attorney from Norwalk, Connecticut passed away in 2002.   On or about February 12, 2003 The Jacobson Family Foundation (hereinafter also “JFF”) of New York City gave a gift of $40,000 to the Synagogue based upon which the Synagogue agreed to name the Sanctuary of the Synagogue in honor of Joseph Getraer.   In the latter part of 2003 the JFF paid the $40,000, and a plaque entitled “The Joseph Getraer Sanctuary” was erected over the entrance to the Sanctuary.   The $40,000 gift plus additional donations totaling well over $100,000 were placed originally in an account and identified as the Joseph Getraer Fund (hereinafter also the “Fund”).   The minutes of the Synagogue's Board of Directors of October 7, 2003 reflect that June Getraer (hereinafter also “June”) the widow of Joseph Getraer offered the $40,000 which had originated from the JFF for the plaque to be built and installed and also offered on behalf of the Fund other monies donated to the Fund to be given to the Synagogue with the restriction that it be used for capital improvements only and not ordinary expenses.   It is clear from the minutes that June and their son Andrew Getraer (hereinafter also “Andrew”) were to control or be the trustees of the Fund and to disburse said Funds for capital improvements.   According to Marion Avrick, who was treasurer of the Synagogue and a member of the Board of Directors, at relevant times, and June both testified that a vote was taken approving this arrangement by the Board of Directors on October 7, 2003 even though the vote does not appear in the minutes.   Leona Lepofsky was the recording secretary of the Board of Directors in 2002 and 2003, and she testified and confirmed that at the aforementioned Board of Directors meeting June and her son Andrew were to give these Funds in memory of her late husband for capital improvements in their absolute discretion and the erection of the aforementioned plaque.   Leona Lepofsky also testified that the Board of Directors, at that meeting, voted to approve the aforementioned arrangement.   The Court believes June, Marion Avrick and Leona Lepofsky.

In further support of the claim of June and Andrew is the fact that the Synagogue subsequently accepted funds from the Fund and at least at that point as well as the actions taken by the Board of Directors a contract was formed between the Fund and the Synagogue.

Subsequently, a dispute arose between June and Andrew and the Board of Directors.   June and Andrew were angry because on several occasions the plaque honoring Joseph Getraer was covered and not visible to people in the Synagogue, and the Board of Directors became unhappy because June and Andrew stopped paying for capital improvements.   This resulted in a new Board of Directors voting to request that June and Andrew turn control of the Fund over to the Synagogue.   This Court finds that resolution and/or request has no legal significance because the Board of Directors cannot unilaterally change the terms of the previously mentioned contract.

The Synagogue has been defaulted for failure to appear, and the trial in this case proceeded on July 12 and 13, 2011.

STANDARD OF REVIEW:

“The plaintiff in a civil case (and a defendant in Special Defenses and Counterclaim) sustain their burden of proof as to any essential element in their cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true.”  Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968).   This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the exhibits in the case.

Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiff to prove his allegations by a preponderance of evidence.   The burden is on the defendants to prove their Special Defenses and Counterclaim by a preponderance of the evidence.

“In an action seeking a declaratory judgment, the sole function of the trial court is to ascertain the rights of the parties under existing law.   Ginsberg v. Post, 177 Conn. 610, 616 (1979).”   Also see Middlebury v. Steinmann, 189 Conn. 710 (1983).

“While we have characterized the proceeding as a special statutory action and therefore distinct from one seeking the imposition of equitable relief;  United National Indemnity Co., v. Zullo, 143 Conn. 124, 129 (1956);  Newington v. Mazzoccoli, 133 Conn. 146, 150 (1946);  the trial court may, in determining the rights of the parties, properly consider equitable principles in rendering the judgment.  (Emphasis added.)   See Andrews v. Connecticut Light & Power Co., 23 Conn.Sup. 486, 493–94 (1962).   This conclusion not only harmonizes the rule that actions in law and equity may be combined in this state;  Channler v. Hale, 173 Conn. 276, 286 (1977);  it is also in accord with our position favoring liberal construction of the declaratory judgment statute in order to effectuate its ‘sound social purpose.’  “ England v. Coventry, 183 Conn. 362, 364, (1981).   Again, see Middlebury v. Steinmann, 189 Conn. 710 (1983).

ISSUES AND FINDINGS:

1. Credibility:

The Court finds that June, Marion Avrick and Leona Lepofsky were credible in their testimony.   In contrast, this Court finds the conduct of Rabbi S. Hecht, who testified, not as credible.   On many issues he was forthright and candid and very articulate.   However, he had been the Rabbi at this Synagogue for 28 years and although technically he was limited to spiritual activity, he, nevertheless, did get involved in the business operation of the Synagogue, even to the extent that he was able to have the Board of Directors which contracted with June and Andrew dismissed and replaced by a Board of Directors of his choosing.   At the time of the 110th anniversary celebration of the Synagogue, a sign announcing that the Synagogue was the Beth Israel Synagogue of Norwalk was placed over the plaque honoring Joseph L. Getraer despite the fact that signs were outside of the Synagogue indicating the name of the Synagogue.   In this Court's opinion the sign was unnecessary and appears to have been done in a fit of pique by members of the Synagogue.   More importantly, in December 2010 during the celebration of Chanukah, Chanukah decorations were placed over the Joseph L. Getraer plaque thereby hiding it from view.   There were many other locations to place these decorations, but even more importantly, these decorations covering the plaque were still there in July of this year.   This Court is well aware that Chanukah is celebrated for only eight days in December, and it is obvious that to continue to cover up the Joseph L. Getraer plaque was an offense and insult to the Getraer family.   Where this Court believes that Rabbi Hecht lost credibility is when this Court asked him about the covering up of the plaque, he testified that that was the province of various committees for these celebrations, at which point this Court said to him:  “Rabbi, if you had requested or ordered these committees to take down the signs and decorations would they do it?”   His answer was a reluctant “yes.”

For Rabbi Hecht to conspire with the committees to insult and offend the Getraer family in this manner was inappropriate, childish and not worthy of the high calling of a Rabbi.¹

No wonder June and Andrew became embittered.

2. Are June and Andrew Entitled to Continue to Control the Fund?

The short answer is Yes.

As stated above they entered into a contract with the Board of Directors under which they would control and be trustees of the Fund, and the Synagogue cannot unilaterally change that contract.

3. Should June and Andrew As Trustees of the Fund Pay for the Outstanding Capital Improvements Which Have Already Been Completed?

The short answer is Yes.

This is an equitable action.   The Court finds that it is only fair to reimburse the Synagogue for its capital expenditures which were made relying on the agreement that the Fund would provide for capital improvements.   The Fund is to reimburse the Synagogue for its capital improvements for which it has already paid.   June and Andrew, however, have discretion as to what constitutes capital improvements.

4. Should the Fund Pay for the Painting of the Rabbi's House?

The short answer is No.

June has stated that the house is not part of the Synagogue.   The Court disagrees.   The Synagogue encompasses all of the land on which the Synagogue and its appurtenances are located.   The house becomes an integral part of the Synagogue because the Rabbi's contract provides that he is to be allowed to use the house as his home.

The Court finds that the approximate $12,000 used to repaint the outside of the house is for maintenance and is not a capital improvement.²  Further, under equitable principles, replacement of a roof that had deteriorated due to lack of maintenance is not a capital improvement for which the Fund should pay.

5. Should the Fund Continue to Pay for Capital Improvements?

The short answer is Yes.

However, there is a condition for continued payment of capital improvements.   Part of the contract is that there be a plaque over the entrance to the Sanctuary in honor of Joseph L. Getraer.   This was done initially, but covering it up is thwarting the intent of the contract because if it is covered up, it effectively is not there.   The Court orders that the plaque honoring Joseph L. Getraer not be covered up and be visible to all who would be able to see it, and if it at any time, is covered up, that is a breach of contract on the part of the Synagogue, and June and Andrew are then free to terminate the trust and the Fund, no longer use the Fund for capital improvements and instead, either return the money to the donors or use it for other charitable purposes in their discretion.

Finally, the Court suggests that the Fund not solicit any further donations and allow the remaining funds to be used up leaving a $0 balance in the Fund at which point the Fund/Trust can be terminated and the relationship between June and Andrew and the Synagogue would come to an end.

Rittenband, JTR

FOOTNOTES

FN1. To be charitable, this conduct was hopefully an error in judgment which will not be repeated..  FN1. To be charitable, this conduct was hopefully an error in judgment which will not be repeated.

FN2. In Saccu's Appeal from Probate, 97 Conn.App. 710 (2006), the case arose in probate court context where the applicable standard requires the court to “ascertain the intent of the testatrix and to carry it into effect ․” In the case at bar, June Getraer is the trustee of the trust that was constituted in part to pay for capital improvements for the synagogue.   She stated that she believes that there was no intent to have the work done on the rabbi's house because it was not “part of the synagogue.”   Although the Court may disagree, her intent is primary.   Further, in Saccu's appeal, supra, the court looked to the Webster's Third New International Dictionary for the definition of maintenance and noted:  “the word ‘maintenance’ is described as ‘the labor of keeping something (as buildings or equipment) in a state of repair or efficiency.”   The Court held that the trial court's order that required the reimbursement of the estate for the cost of repairs was not improper because they constituted ordinary maintenance and repairs.  Id. 719.   Based upon the reasoning of the Court in Saccu, supra, the rabbi's house was painted in an effort to maintain the status quo (i.e., to repair paint on the house that was fading, cracked or chipping) and that this effort constitutes maintenance rather than capital improvements.In publication 862 entitled Sales and Use Tax Classifications of Capital Improvements and Repairs to Real Property from the New York State Department of Taxation and Finance, on page 21 defines “maintenance” as “painting or repainting of existing buildings, structures, or parts thereof.   Painting of new buildings, structures or new additions or installations constitute capital improvements.”Accordingly, in addition to the above reasoning, it is clear that this was a painting or a repainting of an existing building and is classified as repair, maintenance or installation, and not capital improvement.   Black's Law Dictionary Ninth Edition defines “maintenance” as “The care and work put into property to keep it operating and productive;  general repair and upkeep.”   Therefore, the Fund is not required to reimburse the synagogue for the painting of the rabbi's house because it was maintenance and not a capital improvement..  FN2. In Saccu's Appeal from Probate, 97 Conn.App. 710 (2006), the case arose in probate court context where the applicable standard requires the court to “ascertain the intent of the testatrix and to carry it into effect ․” In the case at bar, June Getraer is the trustee of the trust that was constituted in part to pay for capital improvements for the synagogue.   She stated that she believes that there was no intent to have the work done on the rabbi's house because it was not “part of the synagogue.”   Although the Court may disagree, her intent is primary.   Further, in Saccu's appeal, supra, the court looked to the Webster's Third New International Dictionary for the definition of maintenance and noted:  “the word ‘maintenance’ is described as ‘the labor of keeping something (as buildings or equipment) in a state of repair or efficiency.”   The Court held that the trial court's order that required the reimbursement of the estate for the cost of repairs was not improper because they constituted ordinary maintenance and repairs.  Id. 719.   Based upon the reasoning of the Court in Saccu, supra, the rabbi's house was painted in an effort to maintain the status quo (i.e., to repair paint on the house that was fading, cracked or chipping) and that this effort constitutes maintenance rather than capital improvements.In publication 862 entitled Sales and Use Tax Classifications of Capital Improvements and Repairs to Real Property from the New York State Department of Taxation and Finance, on page 21 defines “maintenance” as “painting or repainting of existing buildings, structures, or parts thereof.   Painting of new buildings, structures or new additions or installations constitute capital improvements.”Accordingly, in addition to the above reasoning, it is clear that this was a painting or a repainting of an existing building and is classified as repair, maintenance or installation, and not capital improvement.   Black's Law Dictionary Ninth Edition defines “maintenance” as “The care and work put into property to keep it operating and productive;  general repair and upkeep.”   Therefore, the Fund is not required to reimburse the synagogue for the painting of the rabbi's house because it was maintenance and not a capital improvement.

Rittenband, Richard M., J.T.R.