Congregation Yetev Lev D'Satmar, Inc. v Nachman Brach Inc.

[*1] Congregation Yetev Lev D'Satmar, Inc. v Nachman Brach Inc. 2009 NY Slip Op 50070(U) [22 Misc 3d 1109(A)] Decided on January 15, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 15, 2009
Supreme Court, Kings County

Congregation Yetev Lev D'Satmar, Inc., Ludovick Weisz and Jacob Schonfeld, Plaintiffs

against

Nachman Brach Inc. f/k/a 26 ADAR N.B. CORP., CONGREGATION BETH JOEL, BETH FEIGE INC., NACHMAN BRACH and BAY RIDGE FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendants.



13224/90

Arthur M. Schack, J.

In my September 10, 2008 decision and order in this matter (20 Misc 3d 1142 [A]), I found that defendant Nachman Brach's attorney, Noel Hauser, Esq. engaged in "frivolous conduct," as defined in 22 NYCRR § 130-1.1. I further ordered "that Noel Hauser, Esq., pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.3, shall pay a sanction of $4,000.00 to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210, within thirty (30) days after service of the notice of entry of this decision and order."

I have been informed in a letter, dated January 12, 2009, from Timothy J. O'Sullivan, Executive Director of The Lawyers' Fund for Client Protection, in relevant part that:

We are in receipt of your September 10, 2008 decision and

order . . . which imposed a $4,000 judicial sanction against Noel

Hauser pursuant to the Rule of the Chief Administrative Judge

(22 NYCRR Part 130).

Please be advised that, to date, we have not yet received any

payment from Mr. Hauser towards his $4,000 sanction obligation . . .

The Lawyers' Fund has not been provided with any notice [*2]

of appeal from Mr. Hauser.

This Court has not stayed payment of the $4,000.00 sanction pending any appeal of my September 10, 2008 order. Further, to date no notice of appeal has been filed with the Appellate Division, Second Department and no stay of my September 10, 2008 order has been granted by the Appellate Division, Second Department.

The notice of entry with the affidavit of service upon Mr. Hauser was filed in the Office of the Kings County Clerk on October 27, 2008. Therefore, payment of the $4,000.00 sanction was due on November 26, 2008.

Thus, it appears that Noel Hauser, Esq.'s failure to pay the $4,000.00 sanction to The Lawyer's Fund for Client Protection is wilful disobedience to a lawful mandate of the Court and criminal contempt pursuant to Judiciary Law § 750 (A), which states that "[a] court of record has power to punish for criminal contempt, a person guilty of any of the following acts . . . (3) [w]ilful disobedience to its lawful mandate." "The power to punish for contempts is, inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and right of courts, and consequently to the due administration of justice." (Ex parte Robinson, 86 US 505, 510 [1873]). "Criminal contempt . . . is utilized to protect the dignity of the judicial system and to compel respect for its mandates." (McCormick v Axelrod, 59 NY2d 574, 583 [1983]).

Accordingly, it is

ORDERED, that Noel Hauser, Esq. shall show cause before this Court, Part 27, at 360 Adams Street, Room 479, Brooklyn, NY, 11201 on the 6th day of February 2009, at 2:30 P.M., to explain why this Court should not enter an Order finding Noel Hauser, Esq. guilty of criminal contempt, pursuant to Judiciary Law § 750, and punishing him by imprisonment and/or fine, pursuant to Judiciary Law § 751; and it is further

ORDERED, that this order shall be served by first-class mail, by my Principal Law Clerk, Ronald D. Bratt, Esq., upon Noel Hauser, Esq., at his office located at 270 Madison Avenue, 13th Floor, New York, NY, 1116-0631, today, the 15th day of January 2009.

This constitutes the decision and order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.