HERMAN v. J. Maurice Herman etc., et al.,  Defendants. (2024)

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered September 12, 2023, which, to the extent appealed from, granted in part plaintiffs' motion for contempt of a prior order that required appellant to seek leave of court prior to bringing any action against the court-appointed temporary trustee, unanimously affirmed, with costs.

On a motion for contempt for failure to seek leave of court prior to suing a court-appointed fiduciary, the appointing court may forgo contempt sanctions, and simply make a determination as to whether or not to grant leave for the suit nunc pro tunc (see Copeland v. Salomon, 56 N.Y.2d 222, 230, 451 N.Y.S.2d 682, 436 N.E.2d 1284 [1982]).  Here, the court declined to issue sanctions, but providently denied leave nunc pro tunc based on a review of the merits of appellant's actions against the temporary trustee.

Contrary to appellant's contention, the 2013 order unambiguously required him to obtain leave of court prior to commencing the actions against the temporary trustee. Moreover, while appellant was not held in contempt, he was aggrieved by the order to the extent it denied him leave nunc pro tunc to proceed with the actions against the temporary trustee (compare Glassman v. ProHealth Ambulatory Surgery Ctr., Inc., 96 A.D.3d 801, 801–802, 946 N.Y.S.2d 609 [2d Dept. 2012], appeal dismissed 19 N.Y.3d 1083, 955 N.Y.S.2d 544, 979 N.E.2d 804 [2012]).

The failure to obtain leave can be waived by a party.  However, it cannot be a basis for waiver or estoppel against the appointing court (see Collins v. Vickers, 296 A.D.2d 320, 321, 744 N.Y.S.2d 672 [1st Dept. 2002]).

Contrary to appellant's arguments, the court's enforcement of the unambiguous terms of the 2013 order did not modify the order.

We have considered the remaining contentions and find them unavailing.