Tag 380, LLC v Estate of Ronson

Tag 380, LLC v Estate of Howard P. Ronson 2011 NY Slip Op 07681 Decided on November 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 1, 2011
Gonzalez, P.J., Tom, Sweeny, Renwick, Román, JJ.
101396/04 5912

[*1]5911-TAG 380, LLC, Plaintiff-Appellant,

v

Estate of Howard P. Ronson, etc., et al., Defendants-Respondents, Dutch Metalworkers Fund, Defendant.




Rosenberg & Estis, P.C., New York (Michael E. Feinstein of
counsel), for appellant.
DLA Piper US LLP, New York (Robert F. Fink of counsel), for
Estate of Howard P. Ronson, Ivor Walter Freeman and Barclays
Private Bank & Trust Limited, respondents.
Seward & Kissel, LLP, New York (Bruce G. Paulsen of
counsel), for ComMet 380, Inc., RREEF Corporation, New York State
Common Retirement Fund, respoondents.
Ropes & Gray LLP, New York (Jerome C. Katz of counsel),
and Butzel Long, New York (Robert Sidorsky of counsel), for
Frederick Barclay, David Barclay, Spartan Madison
Corporation, respondents.
Lazare Potter & Giacovas, LLP, New York (Yale Glazer of
counsel), for Allen Silverman, respondent.

Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 13, 2010, awarding attorneys' fees against plaintiff, and bringing up for review an order and judgment (one paper), same court and Justice, entered July 26, 2005, inter alia, awarding a $10,000 sanction against plaintiff, and an order, same court and Justice, entered on or about June 2, 2010, which granted defendants' motion to confirm the report of the Special Referee determining the amount of attorneys' fees, unanimously affirmed, with costs. Appeal from the June 2, 2010 order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff did not abandon its appeal from the July 26, 2005 order and judgment imposing sanctions by unilaterally withdrawing its unperfected appeal (cf. Garsson v Natl Rubber Mach. Co., 271 App Div 770 [1946]). However, it failed to preserve its claim that, if sanctions were imposed, they should be imposed against its attorney only. While defendants expressly sought sanctions against plaintiff, the record is devoid of any argument before the motion court that the sanctions should not be imposed against plaintiff, as distinct from its attorney. It is telling that [*2]plaintiff, which was obligated to present a complete record on its appeal (see e.g Carter v Carter, 49 AD3d 427 [2008]), managed to include in the record defendants' extensive memoranda seeking sanctions but not its own memorandum in opposition. If we were to address the merits of this contention, we would agree with the motion court that, in light of the untenable factual allegations in the complaint as well as the vexatious litigation history of Sheldon Solow, plaintiff's principal, the sanction was properly imposed against plaintiff.

The Special Referee's findings as to the amount of reasonable attorneys' fees are supported by the record (see Steingart v Hoffman, 80 AD3d 444 [2011]). That the complaint was ultimately found to be frivolous does not mean that defendants' attorneys did not justifiably expend extensive efforts to obtain dismissal at an early juncture, before the litigation could engender costly and protracted discovery. Plaintiff's expert testimony on the reasonableness of attorneys' fees was properly barred, as the Special Referee was capable of determining this non-technical and non-scientific issue independently.

We have considered plaintiff's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2011

CLERK