Lavin v Melloul

[*1] Lavin v Melloul 2005 NY Slip Op 50765(U) Decided on May 20, 2005 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 20, 2005
Supreme Court, Kings County

Susan Lavin, Plaintiff,

against

Selyn Melloul and Michel Melloul, Defendants.



11252/02

Arthur M. Schack, J.

In the above-entitled personal injury action, after three days of trial on October 13, 14,

and 15, 2004, the jury rendered a defendants' verdict on liability and the case was dismissed. During the course of this trial, the actions and conduct of plaintiff's attorney, Austen O. Ugweches, Esq., despite repeated warnings and admonishments by the Court, included: the use of frivolous motions in limine; the violation of Court's rulings on motions in limine; harassing and malicious ad hominem attacks and derogatory comments hurled at opposing counsel, Martin L. Landa, Esq., of James G. Bilello & Associates, and the Court; unexplained lateness to trial proceedings; and, conduct completely without any merit in law.

The totality of Mr. Ugweches' conduct during the instant proceeding, which should have taken one or, at most, two days, resulted in this Court, after reviewing the trial transcript to order and conduct a hearing on December 21, 2004 to afford Mr. Ugweches, pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (d), a "reasonable opportunity to be heard" to determine if he engaged in "frivolous conduct," as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (c), and if, pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (a), if "costs" should be awarded to opposing counsel and/or "financial sanctions" imposed upon Mr. Ugweches for engaging in "frivolous conduct." Mr. Landa was allowed to appear and participate in the December 21, 2004 hearing, pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (a), with respect to his firm's "costs in the form of reimbursement for . . . reasonable attorney's fees, resulting from frivolous conduct, as defined in this Part." [*2]

As a result of that hearing, and upon further review of the instant trial transcript, court exhibits and pleadings, the Court finds that plaintiff's trial counsel, Mr. Ugweches, engaged in frivolous conduct, as defined in 22 NYCRR § 130-1.1 (c), which not only must garner the sternest of rebukes but warrant Mr. Ugweches' payment of costs to Mr. Landa's firm and sanctions to the Lawyers' Fund for Client Protection, as per 22 NYCRR §130-1.3. Pursuant to 22 NYCRR § 130-1.2 this is the "written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate."

Frivolous conduct standard

22 NYCRR § 130-1.1 (a) gives the Court, in its own discretion, the authority to award costs "in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees" and/or the imposition of financial sanctions upon a party or attorney who engages in "frivolous conduct. " 22 NYCRR § 130-1.1(c) states: that conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a

reasonable argument for an extension, modification or reversal of existing

law; (2) it is undertaken primarily to delay or prolong the resolution of the

litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

Several years before the drafting and implementation of the Part 130 Rules for costs and sanctions, the Court of Appeals in A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6 (1986), observed that:

frivolous litigation is so serious a problem affecting the proper

administration of justice, the courts may proscribe such conduct and

impose sanctions in this exercise of their rule-making powers, in the

absence of legislation to the contrary (see, NY Const, art VI, §30;

Judiciary Law § 211 [1] [b]).

Part 130 Rules were subsequently created, and effective January 1, 1989, to give the courts an additional remedy to deal with frivolous conduct. These stand besides Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. Gordon v Marrone, 202 AD2d104 (2d Dept 1994), lv denied 84 NY2d 813 (1995).

In Levy v Carol Management Corporation, 260 AD2d 27, 33 (1st Dept 1999), the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, "22 NYCRR 130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party . . ." The Levy Court held, at 34, that "[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular [*3]parties, but also by the Bar at large." The Court in Kernisan, M.D. v Taylor, 171 AD2d 869 (2d Dept 1991), noted that the intent of the Part 130 Rules "is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of New York v. 198 Broadway, 76 NY2d 411; see Steiner v. Bonhamer, 146 Misc 2d 10)."

In Principe v Assay Partners, 154 Misc 2d 702 (Sup Ct, New York County 1992), an attorney was sanctioned for making insulting and objectionable remarks to opposing counsel. In determining if the offending attorney's conduct is frivolous, the Court held that it must use the objective test of considering if the offender's conduct is that of a "reasonable attorney." The Court observed, at 708, that:

Here, the court finds that the conduct at issue was not the conduct of a

"reasonable attorney." Given the rules applicable to professional conduct,

any reasonable attorney must be held to be well aware of the need for

civility, to avoid abusive and discriminatory conduct, to conduct proper

depositions, to eschew obstructionist tactics, and to generally abide by

the norms of accepted practice.

Further, the Court, at 709, instructed that in determining the bad faith aspect of frivolous conduct, the standard to be used is that the behavior or legal claim of an attorney cannot be supported by any colorable argument, logic, precedent or other rational argument, and that "the record allows a court to determine bad faith by the time-honored practice of drawing a conclusion from the pattern of conduct existing in the record."

Sanctions have been imposed when an attorney has wasted the Court's time with delay or needlessly prolonging litigation. CCS Communication Control, Inc. v Kelly International Forwarding Co., 166 AD2d 173 (1st Dept 1990).

In Nachbaur v American Transit Insurance Company, 300 AD2d 74 (1st Dept 2002), lv denied 99 NY 576 (2003), cert denied 538 US 987 (2003), plaintiff's attorney was sanctioned and attorney's fees awarded to opposing counsel for insulting behavior to opposing counsel, baseless ad hominem attacks against the court and opposing party, mischaracterization of the record and no reference to adverse authority. As will be discussed in the instant case with respect to Mr. Ugweches's motions in limine and his pattern of conduct, the Nachbaur Court, at 76, held that "[w]e particularly disapprove of the failure of plaintiff's attorney to cite adverse authority." See Rector, Church Wardens, and Vestrymen of the Trinity Church in the City of New York v Video Editions, Inc., 4 Misc 3d 43 (App Term, 1st Dept 2004); Isabella City Carting Corp., v Martinez, 15 AD3d 281 (1st Dept 2005); Tri Messine Construction Co., v Martinez, 15 AD3d 283 (1st Dept 2005).

Background of the underlying case

The instant case arose out of an October 5, 1999 incident, in front of 936 Kings Highway, Brooklyn, New York. Plaintiff Susan Lavin, then a New York City Police Officer was on foot [*4]patrol and defendant Selyn Melloul was operating a 1992 Jeep Pathfinder owned by her husband, defendant Michel Melloul. Ms. Melloul was double parked while shopping in a butcher shop at that location. When Ms. Melloul returned to her Jeep P.O. Lavin told her to either move the vehicle or receive a summons for double parking. Ms. Melloul drove from the scene and claimed that her motor vehicle never came into any contact with Ms. Lavin. Ms. Lavin claimed that Ms. Melloul's vehicle hit her and she immediately fell to the pavement causing: tearing of her right medial meniscus; various disc herniations and bulges; assorted injuries to her right hand and wrist; and a catalogue of numerous other ills and complaints [plaintiff's August 15, 2002-verified bill of particulars]. Plaintiff went on sick leave for injury in the line of duty for many months and subsequently returned to limited duty. More than a year after the accident plaintiff had arthroscopic surgery on her right knee, claiming it was a result of this alleged accident.

At the time of the incident, plaintiff radioed her partner, P.O. Genine O'Malley, who chased Ms. Melloul's vehicle and arrested her for, among other things, violating PL § 120.05, assault in the second degree, a Class D felony [March 11, 2003 EBT of Susan Lavin, 16-20 and April 1, 2003 EBT of Selyn Melloul, 28-29]

Mr. Ugweches' frivolous conduct

The instant case was assigned to me for trial on the morning of October 13, 2004 and the

respective attorneys, Mr. Ugweches and Mr. Landa, reported to my chambers for a pre-trial conference. Mr. Ugweches told me that his client was a former police officer. I inquired as to why she left the Police Department and he responded that it was for "personal reasons." Mr. Landa then informed me that Ms. Lavin was dismissed from NYPD because of her guilty plea to violation of PL§ 176.20, insurance fraud in the third degree, a Class D felony, in May 2004. She was released on her own recognizance, pending sentencing on November 1, 2004.

Mr. Ugweches, not forthright about his client's criminal conviction, then presented Mr. Landa and myself with a written motion in limine to exclude "any and all facts, statements or records pertaining to the plaintiff's old case(s) outside the within cause of action for the motor vehicle accident of October 5, 1999." claiming that the introduction of this information or other documents would "seriously prejudice the plaintiff's rights." His motion asserted that Mr. Landa and his associates (whom he referred to in the written motion as "Mr. Landau") have "displayed their contempt, hate and disdain for the plaintiff's person by repeatedly calling her names, such as a horrible and a despicable liar, and a 'son of a bitch,' who does not deserve a penny." Further, Mr. Ugweches' motion asserted that courts "have generally disallowed or excluded objectionable materials or evidence that prejudices a party's right, such as what the defendants are seeking to introduce in this trial." Nowhere in his motion in limine did Mr. Ugweches cite any authority for his assertions or present any written evidence of Mr. Landa's alleged name-calling.

Mr. Landa correctly opposed the motion in limine. CPLR § 4513 allows a witness to be cross-examined about a criminal conviction to impeach credibility. I discussed with both attorneys the cases cited by Professor Vincent Alexander in McKinney's Practice Commentaries to CPLR § 4513. Despite Mr. Ugweches' protests, I ruled that Mr. Landa could cross-examine Ms. Lavin about her conviction after introducing documentary evidence of her conviction.

Mr. Ugweches then orally made another motion in limine, for permission to question Ms. Melloul about her arrest. Mr. Landa told us that Ms. Melloul was arraigned on a reduced misdemeanor assault charge, PL § 120.00, assault in the third degree, and that the case was [*5]ultimately reduced to a violation, PL § 240.20, disorderly conduct, with Ms. Melloul pleading to the violation and receiving a conditional discharge and paying the mandatory surcharge and crime victims' assistance fee of $45.00. After discussing this motion in limine, I ruled that Ms. Melloul could not be questioned about her arrest because she was convicted of a violation, not a crime. Mr. Ugweches disagreed and I referred him to Dance v Town of Southampton, 95 AD2d 442 (2d Dept 1983), which held that arrests and indictments are merely accusations, not proof of a crime.

The conference ended and I directed that the attorneys and their clients proceed to my courtroom so that we could commence the liability portion of the bifurcated trial. With only two witnesses on liability, plaintiff and defendant, I anticipated that the jury could reach a liability verdict either that day or the next.

Before the jury entered the courtroom, I placed my rulings on the motions in limine on the record. Mr. Landa presented to the Court a certified certificate of disposition from the Kings County Clerk showing that Ms. Lavin had pled guilty to PL § 176.20 on a Superior Court Information, Docket Number 2002KN066658, before Justice William Garnett (Tr. 3-4). Mr. Ugweches claimed that to allow this in evidence would be "highly prejudicial" (Tr. 4-5), without citing any authority. Further, he accused Mr. Landa of "antics" to introduce the certificate of dispostion (Tr. 6). After continuing to object to the introduction of the certificate of disposition, the following was exchanged, at Tr. 6, lines 14 -22:

THE COURT: Counselor, do you have any cases to argue? Counsel, are you familiar with CPLR Section 4513?

MR. UGWECHES: Yes.

THE COURT: I'll read it for the record, "A person who has been convicted of a crime is a competent witness," which controverts the common law. So certainly this is proof of a conviction. This is a certified record with a raised seal [CPLR] 4513.

I continued citing various authority, including: Prince Richardson on Evidence, 11th Edition, § 6-409; Burton v New York City Housing Authority, 191 AD2d 669 (2d Dept 1993); Sansevere v United Parcel Service, Inc., 181 AD2d 521 (1st Dept 1992); and, Able Cycle Engines, Inc. v Allstate Ins. Co., 84 AD2d 140 (2d Dept 1981); with respect to the right to impeach witnesses in civil proceedings with questions about their criminal convictions (Tr. 7-10). The following took place, at Tr. 11, lines 4 -10:

THE COURT: Your motion in limine is, therefore, denied.

MR. UGWECHES: You ruled the way you did, Judge.

THE COURT: I certainly did.

MR. UGWECHES: And then all I could add to it is I think it's highly prejudicial.

In a discussion about which documents and photographs were admissible or not, I ruled that I would not admit uncertified copies of line of duty injury reports containing hearsay statements. Mr. Ugweches stated, "You just ruled on the record. Defense counsel is running this Court." (Tr. 16, lines 21-22). Mr. Ugweches' continued objections led to the following statement by myself at Tr. 17, line 19-22, "Let the record reflect that plaintiff's counsel, Mr. Ugweches, is raising his voice, and he's interrupting everyone. Do me a favor, calm down."

Mr. Ugweches again made his oral motion in limine to allow the defendant to be cross-[*6]examined about her arrest and ultimate disorderly conduct plea. After an extensive discussion about Ms. Melloul's PL § 240.20 plea I again ruled that she couldn't be questioned about her conviction for a violation, citing Dance v Town of Southampton, supra and Professor Alexander's commentaries to CPLR § 4513 (Tr. 17-22). Mr. Landa presented: Ms. Melloul's December 21, 2000-conditional discharge on Docket Number 99KN093880; the NYPD Form 61 for her arrest; the Criminal Court complaint; and, P.O. Lavin's supporting deposition, which linked the docket number of Ms. Melloul's December 21, 2000 disorderly conduct plea to her October 5, 1999 arrest docket number. After further discussions, and Mr. Landa's consent that Ms. Melloul could be asked about her arrest and then testify that her criminal charges were dismissed (Tr. 22-23), the following colloquy ensued, at Tr. 23, line 8 - Tr. 24, line 8:

THE COURT: You can ask if she was arrested, but she can also say that she was arrested, but the criminal charges were dismissed, which is true.

MR. UGWECHES: No, I cannot say that, not like that. It wasn't dismissed. She pled to something.

THE COURT: She pled to a violation which is not a crime. A violation - -

MR. UGWECHES: We know it was knocked down. It was not the original crime.

THE COURT: I don't care what the original charge was. In this country there's a presumption of innocence. Anybody can be charged with anything. In the end, it's what you're convicted of. It's a yes or no question, Counselor. Was she convicted of a crime, yes or no? Counsel, was she convicted of a crime? Is 240.20 a crime?

MR. UGWECHES: With respect to who?

THE COURT: The defendant, was she convicted of a crime?

MR. UGWECHES: I don't know. Ask him.

THE COURT: You're a lawyer. You should know, too.

MR. LANDA: I have a copy your Honor. It's a violation. It's not a crime.

After further discussions in which Mr. Ugweches confused "CD" (conditional discharge) with "ACD" (adjournment in contemplation of dismissal) (Tr. 24-25), I reiterated that he could ask if the defendant was arrested as a result of the accident but she could state that all charges were dropped (Tr. 25).

A discussion then ensued about trial scheduling and length, with Mr. Ugweches insulting Mr. Landa and the Court, at Tr. 28, line 9 - Tr. 29, line 8:

MR. UGWECHES: From what you ruled so far, denying the motion in limine, excluding a lot of things, and agreeing to what the defense attorney stipulates to, it's not going to take that long.

THE COURT: Fine.

MR. UGWECHES: It's going to go down to the issue of who do they believe. If it's going to be a quick trial, it's going to be a quick trial. The damage has already been done.

THE COURT: There's no damage. By who? By me?

MR. UGWECHES: Judge, the rulings are not very, very good.

THE COURT: The rulings are according to law.

MR. LANDA: Your Honor, I would just ask if we can finish everything, including the summation, this afternoon.

THE COURT: That's fine, too. If we get that far, I have no problem with it.

MR. UGWECHES: Whenever he says something, you agree with him. [*7]

MR. LANDA: I don't think it's unreasonable.

THE COURT: I agree with requests that are reasonable. Make a reasonable request, and I'll agree with it.

After my opening instructions to the jury, the case was adjourned to 2:15 P.M. for lunch.

Openings by the attorneys could not start until 2:40 P.M. due to the unexplained lateness of Mr. Ugweches (Tr. 174). He repeated this discourtesy the next day (Tr. 174).

Mr. Ugweches, in his opening statement to the jury, attacked Mr. Landa, stating, at Tr. 43, lines 16-17, "The defendant counsel doesn't like my client. He hates my client [emphasis added]." Mr. Landa objected. I sustained the objection and warned Mr. Ugweches not to engage in personal attacks, with the following colloquy, at Tr. 44, lines 2-7:

THE COURT: Let's not get into personal attacks.

MR. UGWECHES: I thought I could do my own opening statements.

THE COURT: I'll let you do your own opening statements without personal attacks.

MR. UGWECHES: Judge, it wasn't - -

During Mr. Landa's opening statement, Mr. Ugweches objected to both Mr. Landa's theory that the accident was a fraud by plaintiff (Tr. 51) and what Mr. Landa intended to prove (Tr. 52-55). Each objection was overruled by the Court.

During Mr. Ugweches' direct examination of plaintiff he attempted to show to Ms. Lavin an accident report prepared by Officer O'Malley, which was not in evidence and not marked for identification, stating to the witness, "If I show you a copy of the accident report - -" (Tr. 57, line 12). Mr. Landa objected and was sustained. The jury was sent to the jury room while a discussion took place about the accident report and Officer O'Malley's hearsay report (Tr. 59-65). I explained to Mr. Ugweches that he had to call a report not in evidence a "document" to avoid having any prejudice with the jury. I then warned Mr. Ugweches, at Tr. 65, lines 9-11, "Counsel, as to your conduct so far, the Court has serious concerns about your conduct in this trial. Please follow the rules of evidence and the rules of decorum and stability, please," and then, at line 15, "I don't need you to attack Mr. Landa."

When the jury returned, Mr. Ugweches continued his direct examination of plaintiff and attempted to get plaintiff to give a narrative of the events. Mr. Landa objected and was sustained (Tr. 66). When Mr. Ugweches testified while asking a question, and Mr. Landa's objection was sustained (Tr. 69-70), Mr. Ugweches' next attacked defense counsel and the Court, at Tr. 70, lines 6-16:

MR. UGWECHES: What happened at the time?

MR. LANDA: Objection. Calls for a narrative.

THE COURT: Sustained. MR. UGWECHES: Judge, you always sustain his ridiculous objections [emphasis added].THE COURT: Counsel, I don't like the characterization of the objection being ridiculous. He has a right to object. You have a right to object. We're following the rules of evidence. You cannot use narrative questions. Ask a number of questions to draw out what happened.

Later, Mr. Ugweches attempted to show a copy of a police accident report to Ms. Lavin, without first showing it to Mr. Landa (Tr. 81). I admonished Mr. Ugweches to first show the [*8]document to opposing counsel. This resulted in Mr. Ugweches's criticism of my part rules, at Tr. 81, lines 9-23:

THE COURT: Show it to Mr. Landa first. We want him to know what you're showing.

MR. UGWECHES: Mr. Landa is not a witness.

THE COURT: I know he's not a witness. He's opposing counsel. He has a right to see the document before you show it to the witness.

MR. UGWECHES: He doesn't show me everything he shows you.

THE COURT: He has a right to see it. Just as he has to show you a document, and that's in my rules. You can go to the court website. You can go to the Part rules.

MR. UGWECHES: I know, Judge. They're tough rules [emphasis added].

THE COURT: No. They're fair rules.

Mr. Ugweches' lapse in decorum continued when Mr. Landa objected to the form of a question by Mr. Ugweches and was sustained (Tr. 96). Mr. Ugweches then heaped scorn upon Mr. Landa and the Court, at Tr. 96, lines 6-13:

MR. UGWECHES: Are you going to overrule him on anything?

THE COURT: If he deserves to be overruled.

MR. UGWECHES: This is a ridiculous objection [emphasis added]. THE COURT: Counselor, I object and resent your insinuation. If his objections are not proper, they will be overruled. If they're proper, they will be sustained.

When Mr. Landa commenced his cross-examination of plaintiff, he properly went onto the offensive to attack Ms. Lavin's credibility by offering into evidence the certified copy of the certificate of disposition with her felony conviction (Tr. 100-109). In the presence of the jury, despite my previous rulings on his motion in limine, Mr. Ugweches continued to make objections without any merit in law, failed to cite any authority, verbally abused Mr. Landa and the Court, and wasted the Court's time. This created a turbulent atmosphere. The following took place, at Tr. 101, line 3 - Tr. 103, line 9:

MR. LANDA: Officer Lavin, are you a convicted felon?

MR. UGWECHES: Objection, Judge.

THE COURT: On what grounds?

MR. UGWECHES: On what grounds, Judge? Highly prejudicial. It has nothing - -

THE COURT: We went through this. This is cross examination. Subject to connection?

MR. LANDA: Yes.

THE COURT: Overruled.

MR. LANDA: Can you answer the question?

MS. LAVIN: Yes, I can.

MR. LANDA: Are you a convicted felon?

MS. LAVIN: Yes. I copped a plea to a felony. MR. LANDA: Did you plead guilty for insurance fraud as a D felony in May of this year?

MR. UGWECHES: Objection.

THE COURT: Overruled. Yes or no?

MS. LAVIN: No. I didn't hear. He's yelling at me.

THE COURT: Ask the question. [*9] MR. UGWECHES: Can I ask that he doesn't approach my client. He's too close and yelling and badgering my client. I ask that he keep his distance.

THE COURT: Keep your voice down. MR. UGWECHES: Tell the defendant to keep his voice down, too, Judge. I gotten, like what is going on?THE COURT: I'm not blessed with having a decibel meter. If we had a contest, you're at a higher level. I'll ask both counsel to be civil. I'll ask the reporter to repeat the question.

(Whereupon the court reporter read back the question).

THE COURT: Please answer the question. MS. LAVIN: I don't recall if it was May, but, yes, I did cop to a plea of a D felony. Yes, I did.

MR. LANDA: And - - MS. LAVIN: For financial reasons I had to go that route, because I couldn't afford an attorney.

MR. LANDA: Ms. Lavin - -

MR. UGWECHES: Can she answer?

MR. LANDA: The question calls for a yes or no.

MR. UGWECHES: It's not a yes or no. You're trying to trap her to give you a yes or no. THE COURT: This is a yes or no question. So everything after yes is stricken. When you do your redirect, you can ask her whatever her motivation was, what happened after. You have a right to ask that.

MR. UGWECHES: I don't want to trap her to give a yes or no to mislead the jury. THE COURT: Counselor, It's not about trapping people or anything else. He has a right to represent his defense, and you have a right on your redirect when you get another shot on your redirect.

Mr. Ugweches characterized Mr. Landa's attack on Ms. Lavin's credibility as "nonsense" (Tr. 104). This resulted in the following exchange between Mr. Ugweches and me, at Tr. 104, lines 4-14: MR. UGWECHES: Can you direct the defendant to ask her about this motor vehicle accident of October 5th, not all this other nonsense.

THE COURT: I don't like your characterization - -

MR. UGWECHES: I'm characterizing it that way, because that's what it is. THE COURT: This goes to the credibility of your witness. He has a right to question it. Let's move on. You're overruled.

When Mr. Landa offered into evidence defendants' Exhibit A, a certified copy from the Kings County Clerk of Ms. Lavin's May 28, 2004-guilty plea to PL § 176.20, insurance fraud in the third degree, a class D felony, on Kings County Criminal Court Docket Number 2002KN0676658, Superior Court Information Number 02821/2004, Mr. Ugweches continued to needlessly object and prolong the trial. The following colloquy took place, at Tr. 105, line 25 - Tr. 106, line 17:

MR. LANDA: I would like to have this marked for identification purposes.

MR. UGWECHES: Show me first.

THE COURT: Unless he wants to let it go into evidence - - [*10]

MR. UGWECHES: I highly object.

THE COURT: You did that earlier, and I overruled - -

MR. UGWECHES: I objected to it going into evidence. You can overrule me as you usually do.

MR. LANDA: On what grounds?

THE COURT: On what ground do you object? What's the grounds? MR. UGWECHES: Because it's not relevant to the accident. Highly prejudicial to my client.THE COURT: We went through this on the record before the jury arrived about 4513 in the CPLR and all the relevant cases. It goes to credibility. It's admissible.

After I admitted the certificate of disposition into evidence Mr. Ugweches continued to object and I continued to overrule him (Tr. 107-108).

Mr. Landa questioned Ms. Lavin about her PL § 176.20 plea and the underlying charge of falsifying accident reports for personal injury claims, with Mr. Ugweches continuing to object (Tr. 109-110). Mr. Ugweches objected to the line of questioning and testified in his objection that she pled guilty because of financial hardship. After overruling him, he insulted the court at Tr. 111, lines 1-2, stating, "I know I am [overruled]. I'm always overruled here [emphasis added]."

When Mr. Landa questioned Ms. Lavin about the October 5, 1999 incident, Mr. Ugweches called out an answer to his client and was admonished by myself to not coach his client (Tr. 114-115). At Tr. 115, line 7, I told him, "Make an objection if your feel it's appropriate." He responded, at the next line, "I'm always overruled by you [emphasis added]."

In response to Mr. Landa's questioning, plaintiff said that it was "more than likely" that she gave a summons for double parking to Ms. Melloul (Tr. 150). Following up, Mr. Landa asked Ms. Lavin if she had to go to the Parking Violations Bureau concerning the summons (Tr. 152). This lead to the following remarkable exchange, at Tr. 152, line 4 - Tr. 153, line 11, in which not only did Mr. Ugweches testify, but he asserted that as a parking violations bureau administrative law judge, he "happens to know" that persons issued parking summonses have to prove their innocence, as opposed to a respondent having the presumption of innocence: MR. LANDA: [question to Ms. Lavin] Did you have to go down to the Traffic Violation Bureau concerning the summons?

MR. UGWECHES: Objection.

THE COURT: What's the objection? MR. UGWECHES: First of all, the court has been taking judicial notice [previously on compass directions in photographs of Kings Highway as to the directions vehicles were traveling, such as eastbound or westbound, based upon landmarks in the photographs], issuing agents, police officers, when they write parking summons, do not have to go to court. I happen to know. I'm an administrative law judge. They don't have to appear in court. These are misleading questions, and he's trying to confuse the jury by attacking my witness.

THE COURT: Are you testifying?

MR. UGWECHES: I'm not testifying. THE COURT: Let me ask you a question. As an administrative law judge, if someone [*11]pleads not guilty, can't PVB require the presence of the officer?MR. UGWECHES: No. Officers - - issuing agents, police officers, never appear. It's the law. It's highly structured. It's the defendant who have to prove the claims when they claim they didn't - -THE COURT: The defendant has to prove their innocence? Isn't there a presumption of innocence? The PVB has no presumption of innocence?MR. UGWECHES: We're not addressing that issue. What I'm telling you as a practicing attorney and as an ALJ who happens to know, let the Court take judicial notice that police officers or issuing agents or so-called meter maids do not have to appear at any tribunal when they write a summons. It's the respondent who have to prove whether they're guilty or not on the summons. I'm tired of this defendant's attorney - -

After Mr. Landa finished his cross-examination, and I asked Mr. Ugweches to begin his redirect, Mr. Landa said he had one more question. I gave him permission to ask (Tr. 160). This lead to the following exchange, at Tr. 160, lines 6-19.

MR. UGWECHES: Judge, a couple of questions?

THE COURT: He has one more question.

MR. UGWECHES: He just rested.

THE COURT: You're not prejudiced by this.

MR. UGWECHES: I am, Judge.

THE COURT: It's 30 seconds.

MR. UGWECHES: My client is prejudiced.

THE COURT: Ask one more question.

MR. LANDA: Ms. Lavin - -

MR. UGWECHES: Is this a trial?

THE COURT: Yes.

MR. UGWECHES: It doesn't look like one.

THE COURT: You know, I'm tired of your comments. We're going to talk later.

Mr. Landa asked several follow-up questions and Mr. Ugweches continued to object (Tr. 161-162). After being overruled, Mr. Ugweches displayed his continued lack of decorum by commenting, at Tr. 162, lines 2-3, "Judge, I'm not going to be quiet." The time being 5:00 P.M., I adjourned the trial to 2:15 P.M. the next day (Mr. Landa had a funeral to attend the next morning - Tr. 316-317), but Mr. Ugweches protested that he wanted to then start his redirect. He made his last attack of the day upon Mr. Landa with, "I'm supposed to redirect and follow up these ridiculous things he [Mr. Landa] raised up." (Tr. 163, lines 5-6).

The next day, proceedings in the case could not commence until 2:40 P.M. due to the unexplained lateness of Mr. Ugweches (Tr. 174). The proceedings began with Mr. Ugweches, outside the presence of the jury, attacking the probative value of the certificate of disposition showing plaintiff's felony conviction (Tr. 165-170). Mr. Ugweches wasted the Court's time with his claim, based upon an incredulous hearsay conversation with an attorney named Donatelli, whom he asserted represented Ms. Lavin in her criminal case, that Ms. Lavin did not plead guilty to PL § 176.20, but to a lesser charge. The following colloquy took place, at Tr. 165, line 23 - Tr. 167, line 3. MR. UGWECHES: Judge, there's a grave concern that one of the documents introduced [*12]into evidence - - THE COURT: I believe the document, your're referring to, at least off the record as we just spoke, is Defendant's A. It's a Certificate of Disposition.MR. UGWECHES: There's a grave concern that this document might be in error in what was made as an entry in the clerk's office with respect to what the plaintiff pled in the so-called insurance conviction, which is something she denied vehemently. I had been on the phone with the attorney - -

THE COURT: What's the name of the attorney of record. MR. UGWECHES: Donatelli. He represented her in the plea and he swore to me on the telephone this was not the plea that was agreed to with the DA. They dropped the charges. They came back and said she had to plead to something, because she knew those guys. He swore to me on the phone that was not the plea. Obviously, there's some error. I don't know what to believe. I fear high prejudice.

THE COURT: That's a favorite word of yours, prejudice.

MR. UGWECHES: Judge, I have to say it. THE COURT: Well, without Mr. Donatelli - - you know Mr. Donatelli was present when she allocuted, when she took the plea.

MR. UGWECHES: Yes.

THE COURT: You're giving me hearsay without Mr. Donatelli.

I explained to Mr. Ugweches that the Court had in evidence a certificate of dispostion with the official seal of the Kings County Clerk, and that pursuant to CPLR § 4540 (a) the County Clerk's certificate of disposition is prima facie evidence of her felony conviction (Tr. 167). I also explained that all Mr. Ugweches had to attack the validity of the certificate of dispostion was the hearsay of Mr. Donatelli, and further, Ms. Lavin had admitted to her PL § 176.20 conviction during Mr. Landa's cross examination (Tr. 167-168). Mr. Ugweches continued his hearsay prattle as the record reflects, at Tr. 168, line 24 - Tr. 169, line 5: MR. UGWECHES: It's not impossible that there was an error in the entry. There was a criminal defense attorney telling me this is not what was pled. That's what he told me on the phone.

THE COURT: Why don't you bring him in here.

MR. UGWECHES: I just learned of this today.

I told Mr. Ugweches that the record was clear that Ms. Lavin had been convicted of insurance fraud in the third degree, not a lesser charge. He could, on his redirect, question her as to what her reasons were to plead to the D felony charge (Tr. 169-170). Mr. Landa informed the Court that when he attempted to get a copy of the plea agreement, he found out that it was sealed (Tr. 170). Mr. Ugweches, at Tr. 170, line 20, attacked Mr. Landa by stating, "what are you on, a witch hunt?"

At that point, I felt it necessary to immediately warn Mr. Ugweches that his conduct so far "could be deemed to be contempt or sanctionable conduct" (Tr. 171, lines 1 -2). I explained to him the Part 130 definition of "frivolous conduct" and why his conduct could be construed as frivolous. I mentioned his: motion in limine, which lacked any legal authority; continued arguments in front of the jury in favor of the motion in limine; personal attacks on opposing [*13]counsel, especially in his opening statement to the jury; criticism, before the jury, of my part rules; and, lateness the previous afternoon and this afternoon to the courtroom. I put him on notice that I would not tolerate his conduct and I would order the minutes to determine if his conduct warranted giving him an opportunity to be heard as to whether or not he should be sanctioned, pursuant to Part 130 (Tr. 171-175).

Mr. Ugweches apologized to the Court (Tr. 175), and explained that he passionately fights for his clients. He stated that he acted the way he did because Mr. Landa called his client a "son of a bitch" in settlement discussions in JCP [Jury Coordinating Part - the trial assignment part from which cases are assigned to trial judges] (Tr. 175-176). I told him, at Tr. 176, lines 2 -3, "You're coming back to hearsay. I wasn't in JCP. I don't know what was said. Go see Judge Ruchelsman [the JCP judge]. All I know is what was done in my presence." Mr. Ugweches excused his lack of decorum by stating, at Tr. 176, lines 5-15: I'm trying to tell your why, you know, I feel the way I do about this. Having said all

of that and all the things that happened, even given the de minimus offer that was on

the table, he said he vetoes this, and my client is not entitled to a verdict. They're [defendants' insurance carrier] not offering a penny. When we came

to your chambers, a lot of things were said. I tried to forewarn you about what was said in the elevator in front of counsel, all the attorneys that know me here. In different boroughs at different times I work with different firms. I behave very civil.

He explained, further, at Tr. 176, line 21 - Tr. 177, line 1:

Judge, what I'm trying to say here is when we finally came to your chambers

and while were coming [to] get to the elevator, Counsel is standing next to me

saying that "this is a bullshit case" He's saying "a bullshit case." How would

any lawyer feel?

I told him I would not comment about private conversations (Tr. 177). At Tr. 178, lines 10-15, I said to Mr. Ugweches:

I'm going to tell you, sir, certainly, you have a responsibility to zealously

represent your client, but in that zeal, you have to follow the rules of

evidence, the statutes, precedents, and behave civilly towards each other,

and that means no personal attacks on opposing counsel.

Before calling the jury back for redirect of Ms. Lavin, I again warned Mr. Ugweches, at Tr. 179, lines 3-5, "If you continue to misbehave, I'm going to have to take appropriate action. You're on notice. Behave yourself. That's all I'm telling you."

In his redirect of Ms. Lavin, Mr. Ugweches referred to her "so called insurance fraud" conviction (Tr. 183) and "alleged insurance fraud" (Tr. 184). I sustained Mr. Landa's objections to this and stated that it was not alleged. This led to the following colloquy, at Tr. 184, line 23 - Tr. 185, line 10: MR. UGWECHES: There's an understanding that there was a plea. There was some kind of error with the plea.THE COURT: Counselor, what did we talk about outside the presence of the jury? That's in evidence. Strike all that about any kind of possible error. The jury will disregard that.MR. UGWECHES: Ms. Lavin, why did you plead guilty, as you say you did, to this [*14]insurance allegation.

THE COURT: It's not an allegation, It's a plea of guilty.

Mr. Ugweches then attempted to offer commendations and performance evaluations of Ms. Lavin by the Police Department. He, in continued violation of part rules, asked to show these documents to the witness without giving Mr. Landa a chance to see the documents (Tr. 196). After instructing Mr. Ugweches to show the documents to Mr. Landa, Mr. Ugweches, despite his earlier apology earlier and my warnings to him about his conduct, again attacked Mr. Landa, with the following, at Tr. 196, lines 17-23:

MR. UGWECHES: I would like to show it to the witness.

THE COURT: Show it to Mr. Landa.

MR. UGWECHES: He's going to object. He objects to everything [emphasis added].

THE COURT: Watch your comments. Let's act civilly towards opposing counsel.

Mr. Ugweches then read to Ms. Lavin various portions of her deposition testimony and asked her questions. Several times he testified and commented on her deposition testimony, resulting in my sustaining objections by Mr. Landa (Tr. 199-201).

Mr. Ugweches then questioned Ms. Lavin about parking summonses and after admitting that he had never read my part rules, he attempted to testify about parking tickets, at Tr. 201, lines 8-17:

MR. UGWECHES: I show you a blank form. THE COURT: Show it to opposing counsel. Show it to opposing counsel. You haven't read my part rules.

MR. UGWECHES: I haven't had a chance.

THE COURT: It's on the Internet. MR. UGWECHES: I show you a blank form of a parking ticket. Was this the type of ticket, that you were - - because there's different kinds. There's some electronic - -

MR. LANDA: Objection. He's testifying.

THE COURT: Sustained.

In further questioning about information written on parking tickets, I had to admonish Mr. Ugweches, at Tr. 202, line 18, "Stop testifying."

Because Mr. Ugweches asked Ms. Lavin about her insurance fraud conviction in his redirect, Mr. Landa asked further questions in his recross. Mr. Ugweches objected. I overruled him and he continued to protest (Tr. 207-208). I had to stop him from interrupting me and said, after being interrupted by Mr. Ugweches, at Tr. 207, line 25 - Tr. 208, line 2, "Let me finish, I don't know why you keep interrupting me. That's not nice. It's not civil."

Mr. Landa elicited answers from Mr. Lavin about her conviction, but when Ms. Lavin was asked if it was a D felony, Mr. Ugweches continued to waste the Court's time with objections. The following record was said, at Tr. 209, line 17 - Tr. 210, line 8:

MR. LANDA: And you pleaded guilty to insurance fraud.

MS. LAVIN: Yes.

MR. LANDA: Which is a D felony?

MR. UGWECHES: Objection, Judge.

THE COURT: What's the objection?

MS. LAVIN: I don't know if it was an E or a D. [*15]

THE COURT: What's the objection?

MR. UGWECHES: I mean, subject to foundation and not relevant.

THE COURT: Foundation? We have the evidence.

MR. UGWECHES: He's really - - THE COURT: Defendant's A. We have a certified record from the County Clerk that she pled guilty to insurance fraud. Let's continue please.

Mr. Landa continued his line of questioning to impeach Ms. Lavin, including questions about prior lawsuits in which Ms. Lavin was the plaintiff. Mr. Ugweches objected on the grounds that this was irrelevant. He was overruled (Tr. 217), and this led to the following colloquy, at Tr. 217, lines 18-25:

MR. UGWECHES: He's [Mr. Landa] taking liberties with a lot of things.

MR. LANDA: Excuse me? For this characterization, I object to that. THE COURT: Do me a favor [to Mr. Ugweches]. The first opportunity, I want you to read Rule No. 8 of my rules of trial, Counsel, very closely, and I'll discuss that outside the presence of the jury in a few moments. Read Rule No. 8.

After Ms. Lavin finished testifying, the jury was sent out of the courtroom for a five-minute break, and I read the following into the record, at Tr. 219, line 19 - Tr. 220, line 8: THE COURT: Let the record reflect that the jurors and alternates have left the room.

Before we take the break, I want to refer to Rule No. 8 of my trial rules. I want to read it into the record. It says, "Courtroom Comments and Demeanor: All remarks should be directed to the Court. Comments should not be made to opposing counsel. Personal remarks, including name calling and insults to or about opposing counsel, will not betolerated. Remember, do not try to talk over each other. Only one person speaks at a time or the record of the proceedings will be incomprehensible," and some of the other items are don't remarks about other attorneys, what they're doing or not doing. Make your objection and I'll leave it at that. Read my rules. My fair rules.

At the end of the break, before the jury's return, I again admonished Mr. Ugweches that he could not refer to Ms. Lavin's D felony conviction as "alleged." (Tr. 222). I also made it clear to Mr. Ugweches that he could not ask Ms. Melloul, for impeachment purposes, about her arrest since it resulted in a plea to a violation, not a crime. Mr. Ugweches said that we had agreed on that (Tr. 223).

Ms. Melloul was called as a witness by Mr. Ugweches. After numerous objections by Mr. Landa to Mr. Ugweches' form of questioning were sustained, when I ultimately overruled an objection by Mr. Landa (Tr. 236), Mr. Ugweches still protested despite prevailing, and displayed his continued lack of decorum, at Tr. 237, lines 1-9:

MR. UGWECHES: He's [Mr. Landa] just jumping at everything.

THE COURT: If you bother to listen, his objection was actually overruled. You won one.

MR. UGWECHES: That was very kind of you, Judge. THE COURT: I try to be, and I admonish you for what we discussed earlier. Behave yourself.

In questioning Ms. Melloul about her pre-trial deposition, Mr. Ugweches continually [*16]misread from the transcript and had to be corrected by the Court sua sponte or after objections by Mr. Landa (Tr. 251-262). He also read from the deposition transcript about Ms. Melloul's arrest (Tr. 264-265).

In answer to further questions, Ms. Melloul denied that her vehicle touched Ms. Lavin when she left the scene (Tr. 266), stating that Ms. Lavin was four or five feet from her vehicle. This led to the following exchange, which adds to wonderment about Mr. Ugweches' ability to practice law, at Tr. 266, line 20 - Tr. 267, lines 1-2:

MR. UGWECHES: You expect me to believe that?

MR. LANDA: Objection, your Honor. THE COURT: Sustained. You're not the jury. You don't have to weigh her credibility. There's six people here who can decide what that truth is in this case, not you. Let's not make these comments.

You're getting close to contempt.

During the cross-examination of Ms. Melloul, after a voir dire of Ms. Melloul about the accuracy of a photograph of the site of the incident was accepted to evidence, and the photograph was being published to the jury, Mr. Ugweches objected because the identity of the photographer was not established and the date when the photograph was taken was not known (Tr. 278-279). This resulted in the following admission by Mr. Ugweches as to his knowledge of evidence texts,

at Tr. 279, lines 8-18:

THE COURT: Whoever took the photo is irrelevant.

MR. UGWECHES: And when the photo was taken?

THE COURT: That's irrelevant. I would suggest that you read Prince Richardson or any other text.

MR. UGWECHES: That's for judges to read [emphasis added].

THE COURT: What?

MR. UGWECHES: Isn't that what the judges read?

THE COURT: And so do law students. It's used in many law schools as a textbook.

Mr. Ugweches then objected to Mr. Landa asking leading questions of Ms. Melloul. I had to explain to him that it was proper for Mr. Landa to ask leading questions on cross-examination. I again referred him to Prince Richardson (Tr. 280-281).

Mr. Landa asked Ms. Melloul about her arrest and what occurred to her (Tr. 282-284). Mr. Ugweches objected and I told him that since he opened the door about defendant's arrest, she could testify about her booking and arraignment (Tr. 284-285).

After the jury was dismissed for the day, Mr. Landa asked the Court to sanction Mr. Ugweches for bringing up the subject of Ms. Melloul's arrest and plea to disorderly conduct (Tr. 298). The following colloquy took place, at Tr. 298, line 13 - Tr. 299, line 12: MR. LANDA: I'm asking for the Court, respectfully, to sanction this individual. We spoke about this matter at length in chambers, and today just before the testimony started, your Honor specifically instructed counsel not to bring up anything about a discon., about pleading guilty to anything, and he brought it in, contrary to the court's instructions.That's detrimental to my client's case. I strongly request that sanctions beimposed on this individual. That's outrageous. It's disrespectful to the Court and prejudicial to my client's case, your Honor.[*17]MR. UGWECHES: I would ask that this defense attorney, if he's asking for sanctions here [be sanctioned] tit for tat.THE COURT: There's no sanctions tit for tat. You do sanctions if you engage in frivolous conduct.MR. UGWECHES: All I'm doing here is protecting my client's rights from all the antics that this defense attorney has been engaging in, bringing things in that shouldn't be coming in, misleading the jury, framing questions, putting things in that shouldn't be there. I'm zealously protecting my client's right.THE COURT: We discussed this yesterday and today. Don't get into it, Counsel. You asked in the EBT about the arrest. He had to go through this. You opened the door. He had to rehabilitate his client.

Mr. Ugweches continued to demonstrate to the Court that he didn't understand that a plea to PL § 240.20 is a plea to a violation, not a crime (Tr. 299-300). He claimed that his reading from the EBT about Ms. Melloul's arrest was a mistake and that he wanted to stop reading but continued to read because of the Court's instructions (Tr. 301). I told him that whatever he read from the EBT was his choice (Tr. 301).

I then informed both attorneys that I would order the minutes and reserve decision on Mr. Landa's application for sanctions (Tr. 301). I agreed with Mr. Landa that Mr. Ugweches could not comment about the disorderly conduct plea to the jury (Tr. 302). This exchange then followed at Tr. 303, lines 1 -16:

MR. UGWECHES: That would be highly prejudicial to my client.

THE COURT: Those are your favorite words.

MR. UGWECHES: Judge, I know. THE COURT: However, in all fairness, not only is it highly prejudicial to the defendant to discuss an arrest that is merely an accusation - -

MR. UGWECHES: He opened the door.

THE COURT: No. You opened the door. Let me finish.

MR. UGWECHES: He opened the door. THE COURT: No you did. I think you should read what Professor Alexander wrote about [CPLR] 4513, what is admissible and not admissible about criminal conviction. An arrest is not a conviction.

The next morning, after placing the opposing attorneys' approval of the charge and verdict sheet on the record, Mr. Ugweches was warned by me that since he had opened the door in his summation he could mention Ms. Melloul's arrest but, if he did so, he had to mention that it was an allegation and all criminal charges against Ms. Melloul were dismissed (Tr. 323). Mr. Ugweches said, at Tr. 323, lines 19-20, "I'll not mention arrest of his client and no discon."

During Mr. Landa's summation to the jury, Mr. Ugweches objected several times (Tr. 344, 347, 354) and was overruled each time. When Mr. Ugweches made his second objection, I warned him to be quiet and not to make frivolous objections (Tr. 347).

In his summation, Mr. Ugweches attacked Mr. Landa for cross-examining Ms. Lavin in the instant action about a prior action, in which Ms. Lavin was the plaintiff and Mr. Landa represented the defendant. That trial terminated during the damages portion of the trial when Ms. Lavin, upon advice of her counsel, withdrew the action with prejudice (cross-examination of Ms. [*18]Lavin at Tr. 215-217). Mr. Ugweches stated, at Tr. 361, lines 8-21: When we got to the damages part, she was put on the stand. The same antics he was doing, jumping up, pounding the table. He was even scaring me. I had to brace myself. She got scared and didn't understand the question and was giving responses that were inconsistent.The same antics he used in that case, and that same jury sitting like you to decideto award her damages didn't get a chance to decide that, because the judge decided before she said something inconsistent or harmful to herself to end the trial.

The lawyer went along with it. The case ended before it ended. Now he's tryingto pull the same antics. Why else would he go and pull this conviction of insurance fraud?

Mr. Ugweches misstated the facts and then denied doing this, at Tr. 362, lines 4-23:

MR. UGWECHES: My client was not indicted. As a matter of fact, the DA dropped the charge [emphasis added].

MR. LANDA: I don't believe there's any testimony to this effect. I don't usually like to object.

THE COURT: I know. I appreciate that. I'm going to sustain the objection.

What is clear from the evidence is, as a matter of law, she pled guilty to insurance

fraud. You're right that she wasn't indicted, and there's a reason why she wasn't indicted. She accepted a plea.

I don't want to get into what [a] Superior Court Information is as opposed to anindictment, but it's an accusation, and she pled guilty to that particular accusation by theDistrict Attorney as opposed to the Grand Jury. The key is she pled guilty to a felony.

That's it.

MR. UGWECHES: Can I continue.

THE COURT: You made a misrepresentation.

MR. UGWECHES: No, I did not, Judge.

THE COURT: Let's continue.

Mr. Ugweches' summation went beyond the normal arguments a lawyer would make with respect to the evidence, and included numerous attempts by Mr. Ugweches to testify and bring in matters not in evidence. Mr. Landa's objections to matters not in evidence were sustained (Tr. 364-366). Mr. Landa had placed in evidence, when cross-examining Ms. Lavin, a 1995 accident report with a claim by Ms. Lavin similar to that of the instant case. Mr. Ugweches attempted, in his summation, to testify about the 1995 events. I had to admonish him not to testify before the jury (Tr. 366). Mr. Ugweches, further, attempted to testify again about the 1995 accident and subsequent trial and accused Mr. Landa again of "antics and tricks" (Tr. 374). I again admonished him again not to testify (Tr. 374-375).

Mr. Ugweches then accused Ms. Melloul of being coached by Mr. Landa. This exchange took place, at Tr. 376, lines 3-10:

MR. UGWECHES: She's [Ms. Melloul] saying all along or what was told to her or whatever to say - -

MR. LANDA: Objection. I strongly object.

THE COURT: There's no evidence that she was instructed how to testify. Now you're impugning his integrity as an attorney and his ethics. It's totally out of line. She testified. You [*19]can characterize her testimony and move on.

While deliberating, the jury sent a note at 1:50 P.M. for a read back of the definitions of "preponderance of the evidence" and "credible witness" (Tr. 398). The court clerk called my chambers as it was lunch time. I told the clerk I would return to the courtroom in a few minutes (Tr. 398). As I was about to leave my chambers for the courtroom, the clerk called me again and informed me that we received a second jury note at 2:20 P.M., informing the Court that the jury had reached a verdict (Tr. 398).

The jury verdict on liability was for the defendant. (Tr. 395). After the jury was dismissed, Mr. Ugweches moved for a mistrial, because I did not answer the first jury note (Tr. 398). I explained to him that the second jury note superseded the first note. The fact that the jury reached a verdict meant that they had resolved the issues raised in their first note (Tr. 398-399).

I then explained to Mr. Ugweches and Mr. Landa that I was going to order the minutes and conduct a hearing pursuant to 22 NYCRR § 130-1.1 to determine if Mr. Ugweches engaged in frivolous conduct (Tr. 400-401). Mr. Ugweches asked that a sanction hearing be conducted for Mr. Landa (Tr. 401). I told him that I would review the transcript, but I didn't believe that Mr. Landa engaged in frivolous conduct (Tr. 401). I also informed Mr. Ugweches that if he believed that Mr. Landa engaged in frivolous conduct he could file a notice of motion and motion to have Mr. Landa sanctioned (Tr. 401-402). After Mr. Ugweches again claimed that Mr. Landa engaged in frivolous conduct, the record concluded with me telling Mr. Ugweches to order the transcript of the trial (Tr. 402-403).

To date, Mr. Ugweches has not filed a motion for sanctions against Mr. Landa.

Mr. Ugweches' December 21, 2004 Part 130 Hearing Mr. Landa attended the hearing. Mr. Ugweches waived his right to counsel and

represented himself (Hearing Tr. 3). At the commencement of the hearing I reviewed the terms of 22 NYCRR § 130-1.1 with the parties. I announced that I had read the trial transcript and I would ask Mr. Ugweches to explain his trial conduct with respect to certain matters (Hearing Tr. 2-3). Mr. Ugweches' continued defense was that he zealously represented his client. Further, he mocked the Court by continuing to refer to this proceeding as a "punishment hearing."

First, I asked Mr. Ugweches why he continued to object to Mr. Landa's questioning of Ms. Lavin about her felony conviction before the jury, after I had ruled against Mr. Ugweches' motion in limine in chambers and on the record, outside the presence of the jury (Hearing Tr. 4-5). This led to the following exchange, at Hearing Tr. 5, line 20 - Hearing Tr. 6, line 15: THE COURT: Why did you continue objecting in front of the jury and delaying the trial and continuing with respect to my previous ruling on your motion in limine which was denied? Do you have anything to say?

MR. UGWECHES: Judge, at this point, I respectfully submit to the Court that my objections and my zealous representations of my client, based on the nature of this matter from the outset, based on the way defendant's counsel has conducted himself from the beginning and subsequently belittling the case, insulting the plaintiff's attorney, calling the case a bullshit case - -

THE COURT: He never did that in this courtroom. You're the one who raised that issue. MR. UGWECHES: Judge, if I may, you asked me to speak. I am here because the whole thing is why I am being brought back after trial two months ago for punishment here [*20]when I was only zealously representing my client's interest. To shut up and not say anything, my client would not be represented.

Mr. Ugweches continued to argue that what was said in private and off the record in settlement discussions allowed him to object at trial before the jury, despite adverse rulings (Hearing Tr. 7-9).

Mr. Ugweches then accused me of statements in a pre-trial conference in chambers that I never made, claiming that I remarked about injuring my arm and not suing anyone (Hearing Tr. 9). The following was then said, at Hearing Tr. 9, lines 3-9: MR. UGWECHES: Right there, I felt my client would not get a fair trial. I did not insist on you recusing yourself. You said in front of the jury here to shut up and sit down.THE COURT: I did not say that. I never saw on any page I told you to shut up and sit down. If you tell me the page and line number, I will look at it.

Mr. Ugweches then failed to cite any page and line number of the trial transcript for that allegation.

I then asked Mr. Ugweches why he attacked Mr. Landa in his opening, quoting from Tr. 43, when he told the jury that Mr. Landa hates his client (Hearing Tr. 10). This led to the following colloquy, with Mr. Ugweches' rambling statements, at Hearing Tr. 10, line 21 - Hearing Tr. 11, line 22:

THE COURT: Why did you attack Mr. Landa personally in the opening?

MR. UGWECHES: Judge, in light of the fact that defendant's attorney in open court called my client, a "son of a bitch who doesn't deserve a penny - -" THE COURT: In this court? Where in the 403 pages did he call her a son of a bitch? You said he said it, but I want to know where he said that.MR. UGWECHES: I am saying what is factual here. I don't have a chance here because this is a punishment hearing, for whatever reason, two months after the trial. I've never seen anything like this. In light that he said that, okay, and continued and even withdraw the standing offer and everything he said and then introduce the transcript of a prior trial which was among the things that the jury called for, for read back, read back of the previous trial.In light of the fact he said that, I am allowed to say that he did not like my client.

He did not even cover up his bias towards my client. He does not attempt to hide it. THE COURT: Sir, your client alleges that there was an auto accident October 5, 1999. The issue isn't whether Mr. Landa like or dislikes your client. The issue is whether there was an accident and who is responsible for what took place.

I then asked Mr. Ugweches why he attempted to use the hearsay of an attorney, Mr. Donatelli, that Ms. Lavin never pled guilty to insurance fraud, despite her certificate of disposition being in evidence and the fact that Ms. Lavin admitted to her felony plea in her cross-examination (Hearing Tr. 14-15). This led to another disjointed explanation by Mr. Ugweches, at Hearing Tr. 15, lines 9-18: Judge with all due respect, what was communicated to me was what I communicated to you, like you said, outside the presence of the jury. I was toldthat that wasn't what she pled to. I was of counsel to Mr. Donatelli who had this matter at the criminal plea, okay. I was communicating to the Court what was presented to me.[*21]It behooves me to communicate that to the Court, that it wasn't so. That's what I was communicating. There was nothing frivolous about that, nothing whatsover.

Further, Mr. Ugweches added, at Hearing Tr.15, lines 22-24, "I am being penalized for, instead, for zealously representing my client. That's an issue." I never took issue with Mr. Ugweches' attempt to zealously represent his client. However, his lack of legal skill and sheer disrespect and scorn for opposing counsel and the Court seriously places in doubt whether Mr. Ugweches is capable of competent, not even zealous, representation of any client.

I then asked Mr. Ugweches to explain the derogatory comments he made about the Court, and as an example, quoted from Tr. 17, when I placed on the record that Mr. Ugweches was raising his voice and interrupting everyone (Hearing Tr. 16). Mr. Ugweches, who never ordered the minutes, responded, at Hearing Tr. 16, lines 10-11, "Judge, I don't remember that at all."

I also asked Mr. Ugweches to explain his previously cited comments at: Tr. 28, that "the damage has already been done"; Tr. 29, that whenever Mr. Landa says something I agree with him; Tr. 70, that I always sustain Mr. Landa' "ridiculous objections"; Tr. 81, when Mr. Ugweches called my part rules "tough rules"; Tr. 96, when Mr. Ugweches asked me if I was going to overrule Mr. Landa on anything, and I stated that if he deserved to be overruled, and Mr. Ugweches responded by calling Mr. Landa'a objection "ridiculous" (Hearing Tr. 16-19). Mr. Ugweches' response to this line of inquiry never explained why he attacked the Court. He again presented an aimless discourse, almost incomprehensible, in which he attacked Mr. Landa and myself, accused me of bias and having an ex parte conversation with Mr. Landa about subjects that were not articulated, and fell back on his defense that he was only zealously representing his client. Following is Mr. Ugweches response, at Hearing Tr. 19, line 6 - Hearing Tr. 20, line 22: Judge, as I indicated earlier when you allowed me to speak in the beginning, I feltthis whole thing is highly unfair. Two months after the trial, we have been brought back. You said that the Court acted on its own initiative, which the Court states it appears to be, which is already foregone conclusion on that part. From the point I made the motion in limine, we discussed it. When you were looking for case law in the C.P.L.R., Your Honor, with all due respect, you made a comment that shocked me, one that said you're winning. I am thinking, why would the judge that's supposed to be unbiased and supposed to neutral say he's winning? He is not a party here.All the things went in based on the attorney's conduct, introducing things thatshouldn't even come in here, which I still say is highly prejudicial. My clients brought a lot of things to my attention, including the fact when I left on the break to go to the bathroom, then one and the defense attorney were standing there having a conversation. She doesn't think it was proper and she overheard some things. She didn't think it was proper. She believes the judge should step away. I am saying this because right now I think the whole thing is unfair.I mentioned an issue where I didn't think it was proper. You said you were talkingabout something else. Whatever it is is the appearance of all the things, the surrounding circumstances, the defendant's attorney's conduct in refusing to grant an adjournment when the case is ready to pick the jury to proceeding, picking the jury, holding it, all the antics he displayed in jury selection, everything he did here, jumping up every minute, disrupting the plaintiff's presentation. Plaintiff has to present her case clearly. So be it, [*22]the plaintiff didn't want to go through with this, but still I have done many trials.This is the first time that a judge called me back for a hearing of frivolous conduct.This is the first time. So, Judge, the whole thing is - - I find as I sit here, I am upset that I am going through this, to begin with. I am only zealously representing my client's interests.

I asked Mr. Ugweches about his attacks on Mr. Landa, including his comment at Tr. 298 that Mr. Landa be sanctioned "tit for tat" (Hearing Tr. 221-22). Mr. Ugweches, who had not ordered the trial transcript, questioned the accuracy of the record, at Hearing Tr. 22, lines 4-5, "For the record, I don't know if it's the true rendition of what I said [emphasis added]." I then asked him if he had the transcript. He gave another rambling response, in which he never answered my question, and claimed, at Hearing Tr. 22, lines 19-21, "I said I didn't want tit for tat, but that's what I said. I said I did not want tit for tat."

I then asked Mr. Ugweches to explain his lateness to trial proceedings on the first two afternoons of the trial (Hearing Tr. 22-23). Mr. Ugweches, in his response, didn't explain and also claimed that Mr. Landa was also late. That was remarkable, as Mr. Landa was in the courtroom, with me, waiting for Mr. Ugweches. The following colloquy took place, at Hearing Tr. 23, lines 6-21: MR. UGWECHES: Your Honor, if I may speak to that, I was waiting for my client to return. I was calling the other counsel. I was waiting for her, okay, and there was occasion where the defendant's counsel came in late too during the trial, during one of the proceedings I believe we were returning back from lunch. This is all going on me. The whole thing is unbelievable.THE COURT: I agree. I'll agree with you with that. Even Mr. Landa would agree it's unbelievable.

MR. LANDA: How can he know if I was late if he was late too? MR. UGWECHES: I am not saying it was the day I was late. The time I was here, he was waiting for you. You came late. I don't know if it you office members sitting in the back waiting.

I then asked Mr. Ugweches why he testified before the jury in his summation, claiming that the District Attorney dropped the charges against Ms. Lavin, which didn't happen. He gave another convoluted response (Hearing Tr. 24-25).

I then asked Mr. Ugweches why he questioned Ms. Melloul in his direct examination about her arrest (Tr. 264-265), since it resulted in her plea to a violation, not a crime (Hearing Tr. 26-27). He denied questioning her about her arrest on direct examination (Hearing Tr. 27-28). Mr. Ugweches again questioned the veracity of the trial transcript and attacked Mr. Landa, at Hearing Tr. 27, lines 11-20:

This is the first - - in a civil proceeding I believe is supposed to be civil, okay.

This is the first attorney - - of all the cases I try in different boroughs, this is the first time I am coming back two months after the trial to come back regardless of all the insults he made on me telling the jurors it is a bullshit case, telling the lawyers, "Don't even bother calling the claims office because the offer is withdrawn." It's all about me because I am zealously representing my client's interests.[*23]

I then raised the issue of trial delay, which created an extra day of trial, due to Mr. Ugweches' continued comments, objections, and an attempt to use hearsay to throw out a properly admitted certificate of disposition in evidence. Mr. Landa agreed and presented the Court with an affirmation for $750.00 in costs for reasonable attorneys' fees resulting from Mr. Ugweches' frivolous conduct (Hearing Tr. 29). The following exchange then took place, at Hearing Tr. 29, line 24 - Hearing Tr. 30, line 15:

MR. UGWECHES: Judge, may I speak on that?

THE COURT: Sure. MR. UGWECHES: This is completely false. The trial goes as long as it takes. It is not for the defense attorney to dictate how long the trial lasts. One of the attorneys said, "Who are you going to terrorize today?" He pointed at me. He was going to terrorize me, and he did that. How do you come up with this, with all due respect, nonsense about - -THE COURT: You know, Counselor, this is total hearsay. Why don't you bring that lawyer in as a witness?

MR. UGWECHES: Judge, I find the whole thing - -

THE COURT: You're making a statement and asserting it as the truth.

MR. UGWECHES: Judge, I find the whole thing to be disjustice [sic].

Further, in protesting Mr. Landa's request for $750.00 in costs, Mr. Ugweches made the following flippant comment, at Hearing Tr. 31, lines 4-7, "Being brought back two months later with this nonsense - - I lost a lot of money on this case and he lost $750. Why don't you make it $750,000 [emphasis added]?"

In his hearing summation Mr. Ugweches claimed that one of the jurors was tainted, and had whispered something to Mr. Landa at the end of the trial. He said that this is why he had moved for a mistrial after the jury verdict was announced (Hearing Tr. 33). I reviewed with Mr. Ugweches the trial record which demonstrated that his motion for a mistrial concerned only the two jury notes, and that the record was devoid of any allegations of any juror and attorney misconduct (Hearing Tr. 34-37). Mr. Ugweches, whom it appears never reviewed a copy of the record, again repeated his claim of an inaccurate record, with his statement that, at Hearing Tr. 34, line 20, "Judge, the transcript is wrong [emphasis added]."

Mr. Ugweches continued his assertions and accusations about out of court, off the record conversations (Hearing Tr. 37-28). The hearing ended with the Mr. Ugweches' final attack on the Court and Mr. Landa, at Hearing Tr. 38, line 18 - Hearing Tr. 39, line 12: MR. UGWECHES: Judge, you're not listening to me. You're not understanding me. This proceeding, this hearing to assess costs, as he already threatened to get it, he will terrorize me, me being wasting time I already lost this case, lost a lot of money and coming with this false letter and saying to the Court the law firm lost $750 because the trial should have taken two days instead of one is very subjective, very unreasonable.I find this to be very, very unfair and very biased. I only came here out of respectfor the Court, because the whole thing is ridiculous, okay. I never had a trial. This is the first time I ever had an attorney like this. I think I had fellow attorneys before, but this is the worst.He told me in the presence of another attorney he will terrorize me. I am[*24]

repeating myself now because what I am - -

THE COURT: I am going to reserve decision. You'll hear from me. Thank you.

It is most unfortunate that not only did Mr. Ugweches waste the Court's time, violate Court rulings, continue with malicious ad hominem attacks on the Court and Mr. Landa, was late twice for trial proceedings, continually attempted to use hearsay, disputed the accuracy of the trial record, and exhibited conduct without any merit in law, but he has no understanding of his glaring deficiencies in deportment and legal knowledge.

Conclusion

THEREFORE, based upon the totality of Mr. Ugweches' pattern of conduct in the instant case, which never rose to that of a reasonable attorney, the Court deems that an appropriate sanction for Mr. Ugweches' frivolous conduct is $500.00 for each day of the trial or $1,500.00 in total. Additionally, the Court deems that Mr. Ugweches' must pay costs of $750.00 to James G. Bilello & Associates for reimbursement for reasonable attorney's fees for one additional trial day resulting from Mr. Ugweches' frivolous conduct.

The Clerk of the Court is directed to enter judgment against Austen O. Ugweches, Esq. in accordance with 22 NYCRR § 130-1.2, as follows.

ADJUDGED AND ORDERED that Austen O. Ugweches, Esq. has engaged in frivolous conduct, as defined in 22 NYCRR §130-1.1, and is personally sanctioned pursuant thereto in the sum of $1,500.00, which is to be paid, pursuant to 22 NYCRR § 130-1.3, to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210, no later than June 24, 2005. Further, Mr. Ugweches is directed to file with my chambers proof of payment to the Lawyer's Fund for Client Protection no later than July 8, 2005. Failure to do so will subject Mr. Ugweches to contempt of court.

Further, ADJUDGED AND ORDERED that Austen O. Ugweches, Esq., for engaging in frivolous conduct as defined in 22 NYCRR § 130-1.1, shall pay $750.00 in costs for reasonable attorney's fees to James G. Bilello & Associates, 875 Merrick Avenue, Westbury, NY 11590-6603, no later than June 24, 2005. Further, Mr. Ugweches is directed to file with my chambers proof of payment of costs to James G. Bilello & Associates no later than July 8, 2005. Failure to do so will subject Mr. Ugweches to contempt of court.

Further, a copy of this Decision, Order and Judgment will be sent to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210.

Further, as Mr. Ugweches is admitted to practice law in the State of New York in the First Department, this Court shall transmit to the Departmental Disciplinary Committee, First Judicial Department, certified copies of the Court's trial transcript and Mr. Ugweches' Part 130 hearing transcript, and a copy of this decision, for further action, if any, by the Departmental Disciplinary Committee, First Judicial Department, if Mr. Ugweches' conduct violated various Disciplinary Rules including, among others, 22 NYCRR § 1200.3 (Misconduct); 22 NYCRR § 1200.33 (Representing a Client Within the Bounds of the Law); and 22 NYCRR §1200.37 (Trial Conduct).

This constitutes the Decision, Order, and Judgment of the Court.

_________________________________________ [*25]

HON. ARTHUR M. SCHACK

J. S. C.