Kimmel v State of New York

[*1] Kimmel v State of New York 2005 NY Slip Op 51370(U) [9 Misc 3d 1102(A)] Decided on July 25, 2005 Supreme Court, Monroe County Lunn, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2005
Supreme Court, Monroe County

Betty L. Kimmel and DOUGLAS KIMMEL, Plaintiffs,

against

State of New York, NEW YORK STATE DIVISION OF STATE POLICE, JAMES W. MCMAHON, Individually and as Superintendent of New York State Police, DAVID M. LUITWEILER, Individually and as First Deputy Superintendent, New York State Police, RONALD K. WALL, Individually and as Sergeant of the New York State Police, STEVE LALONDE, Individually and as New York State Trooper and LINDA STEVENS-WAGNER, Individually and as Station Sergeant, New York State Police, Defendants.



95/4327



HARRIET L. ZUNNO, ESQ.

Attorney for Plaintiffs35 Heinz Street

P.O. Box 624

Hilton, New York 14468

EMMELYN LOGAN-BALDWIN, ESQ.

Attorney for Plaintiffs

Suite 400 Century Row

171 State Street

Rochester, New York 14614

JAECKLE, FLEISCHMANN & MUGEL, LLP

Mitchell J. Banas, Jr., Esq. of Counsel

Attorneys for Defendants State of New York,

New York State Division of State Police and

James W. McMahon 800 Fleet Bank Building

Twelve Fountain Plaza

Buffalo, New York 14202

HARRIS, CHESWORTH & O'BRIEN

Eugene Welch, Esq. of Counsel

Attorneys for Defendants David M. Luitweiler,

Ronald K. Wall and Linda Stevens-Wagner

300 Linden Oaks, Suite 100

Rochester, New York 14625

MARY E. ARAMINI, ESQ.

Attorney for Defendant Steve LaLonde

30 West Broad Street, Suite 405

Rochester, New York 14614

Robert J. Lunn, J.

In this action alleging sexual discrimination, the State of New York, New York State Division of State Police and James W. McMahon move for costs and sanctions pursuant to 22 NYCRR Part 130 against plaintiffs and their counsel, including in particular and without limitation, their former counsel Emmelyn Logan-Baldwin. This sanctions application arises out of a motion brought by plaintiff by Notice of Motion dated November, 26, 2004, wherein plaintiff sought various relief, including, to renew and/or reargue this court's September 7, 2004 denial of a default judgment against former New York State Police Superintendent James W. McMahon, to amend its complaint to add new allegations regarding disability discrimination and to reinstate her Title VII claims previously dismissed by Justice Calvaruso in 1996. In her reply papers to the motion, plaintiff's former counsel withdrew that portion of the motion seeking to amend the complaint. On February 10, 2005, following oral argument of the motion, this court denied the balance of plaintiff's motion. This court also granted leave to the State Police defendants to seek sanctions against plaintiffs and their counsel for bringing a frivolous motion.

22 NYCRR §130-1.1(a) allows a court to award costs or impose financial sanctions upon a party or attorney for "frivolous" conduct. Subdivision "(c)" of that rule goes on to define conduct as 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 (22 NYCRR §130-1.1[c]).[*2]

This court finds that plaintiff's former attorney's conduct in bringing the subject motion was indeed frivolous. Relative to the motion to reargue or renew the denial of the default judgment against former Superintendent McMahon, the frivolity of that branch of the motion was noted by this court in its bench decision denying it. There this court stated, This court does agree with counsel for the State Police defendants that plaintiff's counsel has presented by my reading of the papers, a virtual stream of consciousness listing of arguments in support of both reargument and renewal. Such presentation of argument does little to advance plaintiff's cause where it's based almost exclusively on plaintiff's counsel's conclusory assertion and recitation of what she believes to be the facts with little or no support in the record or citation to specific exhibits which are not included with the present application but were part of prior submissions by the plaintiff.

There was absolutely no merit to the motion to amend or renew. In denying the motion, this court went on to note, Beyond the difficulty of even trying to comprehend plaintiff's attorney's arguments, all of her claimed personal involvement of defendant McMahon in the alleged sexual discrimination of plaintiff are in fact outside the scope of the complaint.Hence, as I've previously ruled, Defendant McMahon cannot be deemed to have admitted those allegations where the answer was stricken by the Appellate Division.

The lack of merit to the motion to amend or renew was exacerbated because this court by letter dated November 8, 2004 to counsel essentially directed/invited plaintiff's former attorney to bring a motion to amend the complaint with respect to new allegations involving defendant McMahon. Instead of heeding this direction, Ms. Logan-Baldwin chose to bring a motion to reargue or renew. While the court is of the opinion that Ms. Logan-Baldwin believed that she was zealously representing her client, this motion was brought at her own peril.

Plaintiff's motion to vacate or modify Justice Calvaruso's January 16, 1996 order was also completely without merit in law as it was untimely, brought some nine years after the order and two and one half years after the United States Supreme Court decision in National Railway Passenger Corp. v. Morgan, 536 US 101 (2002) upon which the application was premised. Irrespective of the timeliness of the motion, it was baseless as Justice Calvaruso's decision fully comported with the holding in National Railway Passenger Corp. v Morgan and no new facts were presented justifying any change in that decision.

The motion to amend plaintiff's complaint was also completely without merit in law. The fact that plaintiff's former counsel elected to withdraw it at the eleventh hour and only after counsel for the State Police defendants had spent considerable time and energy in defending against it only magnifies the frivolous nature of that particular motion. If amendment was [*3]"unnecessary" in light of subsequent discovery as stated by Ms. Logan-Baldwin, it never should have been brought in the first place. If it were going to be withdrawn, it should have been withdrawn promptly prior to the attorneys for the State Police defendants incurring over seventy hours in preparation of its opposition papers.

In response to this application for costs and sanctions, plaintiff's former counsel again proceeds down the same path which precipitated the request in the first place. The same legal arguments are made in the same stream of consciousness style and mode employed in the past. The arguments are not comprehensible. Reference is also made to federal procedural law which is totally irrelevant to this proceeding.

Costs in the form of attorney fees payable solely by Ms. Logan-Baldwin to Jaeckle Fleischmann & Mugel, LLP., attorneys for the State Police defendants in the amount of $7,500 is awarded for her frivolous conduct in bringing the subject motion. No costs or sanctions are imposed against plaintiffs themselves or their current attorney as they had virtually no role in the frivolous conduct which the court finds to be solely attributable to Ms. Logan-Baldwin. The amount awarded is appropriate given the considerable amount of time expended by the attorneys for the State Police defendants in defending the frivolous applications and the reasonableness of their billing rates. The court notes that the Jaeckle Fleischmann firm expended over 140 hours in opposing the motion. Additionally, the billing rates charged by that firm to the State of New York for defense of this action is considerably less than that currently charged by Ms. Logan-Baldwin. Finally, while the fees awarded are substantially less than sought by counsel, hopefully the amount awarded is seen by Ms. Logan-Baldwin to be significant enough to deter similar conduct in the future.

This constitutes the decision and order of the court.

SO ORDERED.

DATED: July 25, 2005

Rochester, New York

________________________________

HON. ROBERT J. LUNN

SUPREME COURT JUSTICE