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5.28.09 

News From Across the OCA

• Syosset, NY

In response to news stories that Fr. David Brum was being considered for office in the central administration by the Synod of Bishops again, either as a potential auxiliary bishop or even as Chancellor at some future time, the clergy and lay members of the Special Investigative Committee (SIC) have asked the Metropolitan to reconsider any such action.  In a letter sent this week four of the five members of the Commission wrote: 

Your Beatitude,

Most Blessed Master, Bless.

As members of the former Special Investigating Committee, we write to express our strong disagreement with your proposal to nominate Fr. David Brum to the episcopacy.

During our investigation, it became clear to us that Fr. Brum, while a part of the administration of the Chancery, was a key member of Robert Kondratick’s “inner circle.” In this position, he, along with Fr. Joseph Fester, was a confidant of, advisor to and enabler of the former Chancellor in his scheme to misappropriate, hide and cover up the theft of funds from the Church. Fr. Brum himself was one of those who cashed checks, made the proceeds available to Kondratick and failed to enquire as to the purpose or use of those funds.

He was in a unique position, as Secretary to former Metropolitan Theodosius, to know of the financial and moral lapses committed by that hierarch.

We believe the Church would better be served by those who in no way are associated with this most sorrowful period in its history.

Asking your Archpastoral Blessings,

Priest John Tkachuk
Priest Philip Reese
Dr. Faith Skordinski
Dr. Dmitri Solodow”

The sole member of the Committee not to sign the letter was the Chairman, Bishop Benjamin of San Francisco.

•  Nassau County, LI

Two significant judgments have been rendered in regards to ongoing litigation involving former OCA Chancellor Robert Kondratick and his wife, Bette. In decisions  recently posted online regarding seven motions made by the two sides, the judge ruled in favor of the OCA on the most important (joining the two actions) but against the OCA by denying it access to the Kondratick’s Chase Bank accounts, at least for the immediate future. 

The judge writes;

“....Motion # 05 is motion by the defendant (The OCA) in action #1 (The Promissory Note Litigation) to consolidate the two actions alleging that common issues of law and fact exist. That application is strenuously opposed by the plaintiff  (Bette Kondratick) in action #1 who notes that the events involved differ and do not involve identical parities.
....
Motion #7 seeks a protective order seeking an order quashing the subpoena served by the defendant seeking financial information from a banking institution.

The facts are somewhat simple. However, both counsel have endeavored to engage in extensive motion practice for what would appear to be tactical and strategic advantage rather than to avail themselves of alternative dispute resolution mechanisms despite numerous conferences with the court. The facts are as follows. 

In action # 1, plaintiff alleges that on April 19, 2002 defendant Orthodox Church in America (hereinafter “Church”) executed and delivered to plaintiff and Robert Kondratick a promissory note in the sum of $250,000. 00 pursuant to which defendant agreed to pay the amount due in three equal payments on the first week of September 2002, 2003 and 2004. Robert Kondratick is the husband of the plaintiff and initially was a co-owner of the note in question, but has not sued on the note in question. The plaintiff is the “due and proper owner and holder” of the note and it appears that her husband had assigned his interest in said note to plaintiff. The defendant is in default in payment of same in the entire amount of $250,000.00. After the court denied the 3213 motion, more formal pleadings were served. 

In addition to the action on the note, the plaintiff  (Bette Kondratick) asserted the following five actions (unjust enrichment, breach of contract, quantum meruit, deceptive business practices, attorneys fees)- all stemming from the original default on the note. Curiously omitted is the initial action on the promissory note.

 In response to the complaint, the defendant  (The OCA) asserts an answer asserting no less than fifteen affirmative defenses (most of which allege in on one theory or the other, that the note is void due to the lack of authority of the person executing said note) and three counterclaims which are difficult to comprehend when viewed as interposed against the plaintiff (Bette Kondratick) but more readily discernible if viewed against the non-par husband of the plaintiff (Robert Kondratick)  In essence the counterclaims seek an accounting of church funds which the church claimed were misappropriated and utilized to benefit the plaintiff.

Action # 2 is a multi-faceted action by the church against Elizabeth and Robert Kondratick seeking a judgment in the sum of $1 500 000. Eleven causes of action were asserted two actions requesting an accounting, an action for breach of fiduciary duties, two actions for aiding and abetting a breach of fiduciary duties, an action for unjust enrichment, two actions for monies had and received two actions for conversion, and an action for civil conversion. 

Not to be out pled, the defendants (the Kondratick’s) in action #2 assert no less than fourteen defenses none of which is particularly pertinent (especially those alleging the affirmative defense of contributory negligence when no negligence action has been pled or at least no negligence can be gleaned).

Notwithstanding the verbosity and complexity of the pleadings, the facts as indicated above are relatively facile. 

Robert Kondratick was a priest and Chancellor employed by the Russian Orthodox Church of America from 1989-2006. During the years 1991-2006 he lived with his wife on premises owned by the Church. The Kondraticks claim that during the time they lived on these premises they made substantial improvements to the premises , and pursuant to an alleged agreement they were to be reimbursed by the Church for said enhancement of the Church’ s propert. The promissory note was executed per said alleged agreement. After Mr. Kondratick was discharged by the Church, the Kondraticks moved to the State of Florida. Thereafter, the instant litigation ensued.

The Church has taken the position that in his official capacities with the Church, Robert Kondratick had virtual (if not actual) control over the Church’ s finances. The Church claims that he abused his powers and misappropriated in excess of one million dollars in cash withdrawals. Additionally, the Church claims that he misused a certain credit card for which the Church was responsible. The Church alleges charges of $132,000 were improperly applied to Mr. Kondratick’ s own personal use. 

Whether or not to consolidate two or more actions lies within the sound discretion of the court. Mattia v. Food Emporium, Inc., 259 A.D.2d 527, 686 N.Y.S.2d 473. In the instant case given the allegations contained in the various claims and counterclaims in each action, it appears that similar, if not identical, relevant admissible evidence will be utilized in both actions. Although the actions are not identical, there are some common questions of law and fact, which a provident use of scarce judicial resources would warrant the granting of consolidation for the puproses of a joint trial. See Megvesi v. Automotive Rentals, Inc. , 115 AD.2d 596, 496 S.2d 473. In so ruling, the court observes that the completion of discovery in both actions within a reasonable time frame is likely. Accordingly, motion #5 is granted.

 Lastly, motion #7 seeks a protective order quashing two information subpoenas served on J.P. Morgan Chase. The primary objection is that the information sought is very extensive and allegedly exceeds the time period upon for which recoupment could be had. Additionally, the court observes that the primary objective of the defendant in action #1 is to compel the Kondraticks to account. Generally, financial disclosure of the nature sought herein cannot be had in an accounting action until an interlocutory order directing the accounting has been issued. King v. Olsen, 178 AD.2d 512 577N.Y.S.2d437; Krauss v. Putterman , 51 AD.2d 551 378 Y.S.2d 434. The defendant has, therefore, not established its right to the discovery at this juncture of the proceedings. Accordingly, motion #7 is denied without prejudice to renew upon the entry of an interlocutory order directing the accounting sought. The motion is premature as no application for the granting of an interlocutory order has been made.

So Ordered.

Dated: April 23, 2009”

In short, the OCA won a strategic victory in being able to unite the two actions into one - thus opening the door for it to subpoena the Kondratick’s personal Chase Bank accounts. This was a door the Kondratick’s  had strenuously opposed opening because once their personal accounts become accessible...  The grumpy judge - obviously unhappy at the lack of progress in the case -  then ruled the OCA had jumped the gun in asking to do so, and denied the OCA permission as premature. He did, however, leave the door open for that subpoena to be granted at some point in the future. 

• South Canaan, PA

According to reports from attendees, the annual Memorial Day Pilgrimage is on an upswing, with more attendees than last year - although it was still not as crowded as in the past. The highlight of this year’s pilgrimage was the presence of the Sitka Icon of the Mother of God from Alaska.

- Mark Stokoe


 

 

 
 

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