On July 10, 2026, the New York Surrogate’s Court imposed spoliation sanctions against attorney Richard Kay, former head of the trusts and estates practice at Pryor Cashman, in the $100 million dispute over his handling of the estate of radio pioneer Himan Brown. CLM represents Radio Drama Network (RDN), the nonprofit Himan Brown founded. RDN is challenging Kay’s diversion of Himan’s nearly $100 million fortune to a new entity Kay controls, along with increases to Kay’s own commissions—all through trust changes Kay drafted in 2003 and 2004.
In a key ruling, the court barred Kay from testifying at trial about his conversations with Himan regarding estate planning in 2003 and 2004, because Kay discarded his own contemporaneous notes of those meetings—even though he was on notice that a challenge was coming and there were no other witnesses to the alleged conversations. Surrogate Mella called this destruction of evidence an “exceptional deviation from the practice of most estate practitioners.”
In addressing separate sanctions regarding the destruction of e-mails, the Surrogate also noted that it was highly unusual for Pryor Cashman to allow Kay to be in charge of implementing a litigation hold at the law firm when he was being accused of defrauding a client. In imposing sanctions over this conduct, the court found that Kay was “grossly negligent” for failing to follow instructions from Gideon Cashman to implement a litigation hold at the start of the case. The court rejected Kay’s excuses, calling his argument that his voluminous production should excuse the failure to preserve “without merit.”
Addressing yet another failure, to preserve the e-mail server of the Charitable Trust to which Kay allegedly diverted Himan’s fortune, the Court rejected Kay’s “efforts to abdicate responsibility,” noting that, as trustee, he is ultimately responsible—and that the lost documents are relevant to the benefits Kay and his family received from the diversion of Himan’s fortune.
As the Surrogate noted, Kay’s own motion for summary judgment was denied from the bench, with a decision to follow – setting the stage for trial.
Radio Drama Network was represented by Carter Ledyard’s team of Judith Wallace, Alexander G. Malyshev, Pamela A. Mann, Gary D. Sesser, Sarah H. Ganley, and Kevin M. Simpson.