Pacheco v Zenobio

[*1] Pacheco v Zenobio 2009 NY Slip Op 50882(U) [23 Misc 3d 1121(A)] Decided on May 8, 2009 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2009
Supreme Court, Kings County

Michael Pacheco and Elizabeth Pacheco, Plaintiffs,

against

Michael Zenobio, Recal Associates, Ltd. and Dean at Boerum Hill, LLC, Defendants. Dean at Boerum Hill, LLC, Third-Party Plaintiff, Clark & Wilkins Industries, Inc. and Outdoor Installations, LLC d/b/a Spring Scaffolding, Inc., Third-Party Defendants. Michael Zenobio, Recal Associate, Ltd. and Dean at Boerum Hill, LLC, Second Third-Party Plaintiffs, Loftus Contracting Corp. and T & D Associates, Ltd., Second Third-Party Defendants. Dean at Boerum Hill, LLC, Third Third-Party Plaintiff, Abcon Builders Corp., Third Third-Party Defendant.



30020/07



Plaintiffs were represented by Kenneth V. Madden, Esq. Defendants Michael Zenobio and Recal Associates, Ltd., as well as third third-party defendant Abcon Builders Corp., were represented by Christopher Hinkel, Esq. of McMahon, Martine & Gallagher, LLP. Defendant/third-party plaintiff Dean at Boerum Hill, LLC was represented John Hanson, Esq. of Hitchcock & Cummings LLP. Third-party defendant Clark & Wilkins Industries, Inc. was represented by Douglas Langholz, Esq. of Morgan Melhuish Abrutyn. Third-party defendant Outdoor Installations, LLC d/b/a Spring Scaffolding, Inc. was represented by Denise Palmeri, Esq. of Rubin, Fiorella & Friedman. Second third-party defendant Loftus Contracting Corp. was represented by Christine Brennan, Esq. of Mackay Wrinn & Brady.

Jack M. Battaglia, J.

Defendant/third-party plaintiff Dean At Boerum Hill, LLC moved for an order, pursuant to 22 NYCRR 130.1.1 and CPLR 8303 (a), assessing costs and sanctions against plaintiffs Michael Pacheco and Elizabeth Pacheco for frivolous motion practice. Finding that an award of costs or sanctions or both appeared to be warranted, and although a hearing was not required in light of the pending motion (see Matter of Lupoli, 227 AD2d 560, 561 [2d Dept 1996]), in a Decision and Order dated March 27, 2009 the Court scheduled a hearing "to afford Plaintiffs or their counsel, and any other party, an additional opportunity to be heard and, if necessary, to assess an appropriate amount of costs or sanctions, or both, which may include attorney's fees, costs, and disbursements against Plaintiffs' counsel." Plaintiffs' counsel of record was Thomas D. Wilson, Esq.

The circumstances leading the Court to order a hearing on the motion for costs and sanctions are fully described in its Decision and Order dated March 27, together with its Decision and Order dated August 29, 2008 and its Decision and Order dated January 20, 2009, and will be summarized here. In short, Plaintiffs' counsel persisted in frivolous motion practice after having been clearly and specifically warned by the Court that a further motion on the same grounds would be sanctionable.

Plaintiffs filed a Note of Issue and Certificate of Readiness on April 25, 2008. At that time, a significant amount of disclosure was outstanding, including the injured Plaintiff's medical examinations and all disclosure with respect to the third-party actions. While it appeared that some items of disclosure were completed after the filing of the Note of Issue, including the [*2]injured Plaintiff's medical examinations, it was undisputed that no disclosure had been conducted with respect to the third-party actions, and that defendant Michael Zenobio's examination before trial had not been held. It was also undisputed that the third-party actions were timely commenced in accordance with the preliminary conference order. (See e.g. Jabrone v A.J.C. Food Market Corp, 159 AD2d 298, 298 [1st Dept 1990].)

Plaintiffs' Note of Issue and Certificate of Readiness was vacated in the August 29, 2008 Decision and Order due to the outstanding discovery. (See 22 NYCRR 202.21 [e]; Ferreira v Village of Kings Point, 56 AD3d 718, 719 [2d Dept 2008]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2d Dept 2002].) That order also denied Plaintiffs' motion to dismiss or sever the third-party actions; since the Note of Issue and Certificate of Readiness had been vacated, and outstanding discovery with respect to the third-party actions could be completed prior to the filing of an appropriate note of issue, there was no reason to sever either of the third-party actions. The parties were ordered to appear for a compliance conference, previously scheduled for October 3, 2008.

A Compliance Conference Order dated October 3, 2008 provided for further discovery, scheduled a further compliance conference for February 12, 2009, and directed Plaintiffs to file a note of issue by March 31, 2009. On December 18, 2008, prior to the completion of the ordered discovery, even prior to the dates specified for three of the depositions, Plaintiffs served a second motion seeking dismissal or severance of the third-party actions, as well as an order granting Plaintiffs "leave to restore the matter to the trail [sic] calender [sic] and refile plaintiff(s) [sic] note of issue."

Plaintiffs' motion was denied in its entirety in the January 20, 2009 Decision and Order. The Court noted that, because Plaintiffs' motion was made before the court-ordered dates for depositions, Plaintiffs were not entitled to properly file a note of issue and certificate of readiness when the motion was made. For that reason and others stated in the order, Plaintiffs failed to meet the requirements established by court rule, which Plaintiffs did not even note, for reinstatement of a note of issue (see 22 NYCRR 202.21 [f].)

This second motion to dismiss or sever the third-party actions was not identified as a motion to renew the prior motion, denied in the August 29, 2008 order, and did not meet the requirements for renewal (see CPLR 2221 [e].) In any event, the motion failed to state any valid ground for dismissal of either of the third-party actions, and, again, since outstanding disclosure with respect to the third-party actions could be completed by the March 31 note-of-issue date, severance of neither third-party action was warranted.

Most importantly for present purposes, the Court stated that "[t]o the extent that Plaintiffs' motion is based upon the failure of the third-party defendants to appear for their depositions, it clearly lacks good faith, and may constitute sanctionable conduct." After describing how the motion failed to comply with the Affirmation of Good Faith Court Rule (see 22 NYCRR 202.7), the Court continued: [*3]

"Moreover, the timing of Plaintiffs' motion clearly demonstrates lack of good faith. When Plaintiffs served their motion, the dates for the depositions of the third-party defendants set forth in this Court's October 3, 2008 Order had not yet arrived. Rather than rescheduling some of the depositions, including those of third-party defendants Clark & Wilkins and Spring Scaffolding, Plaintiffs served the instant motion, which only further delayed all of the depositions until the hearing of this motion. Plaintiffs' attorney's affirmation is also misleading in that it asserts that the depositions of third-party defendants Loftus Contracting Corp. and T & D Associates, Ltd. were not held, even though they were not due to be held for another three weeks. Plaintiffs' counsel's lack of good faith in prematurely bringing this motion was compounded by his refusal to stipulate to a further discovery schedule on the return date.

In the event that Plaintiffs file a disclosure motion without attaching a proper good-faith affirmation or prematurely file a motion involving disclosure, counsel may be subject to sanctions pursuant to 22 NYCRR 130-1.1 or costs pursuant to CPLR 8303(a)."

Perhaps needless to state, the Court's warnings were not heeded.

Plaintiffs again moved for an order "restoring the plaintiffs [sic] matter to the active trail [sic] calender [sic] by restoring the plaintiffs(s) [sic] Calender [sic] number." Incredibly, the motion was served on the same day as the compliance conference, February 13, 2009. The cross-motion for costs and sanctions followed.

The March 27 Decision and Order denied Plaintiffs' motion to "restore" and to "re-file their note of issue with their prior calender [sic] number." The motion failed to even address the Court's January 20 order, and merely made the same arguments, in boilerplate fashion, that were previously rejected by the Court.

As to the cross-motion for costs and sanctions:

"In its motion, Dean submits, among other things, a copy of this Court's Order, dated January 20, 2009, and a Compliance Conference Order, dated February 13, 2009. The two orders sufficiently demonstrate prima facie that costs or sanctions may be warranted because: (1) as already discussed herein, Plaintiffs' motion ignores this Court's prior Order, dated January 20, 2009, which fully addressed Plaintiffs' request to reinstate the previously-stricken Note of Issue; (2) Plaintiffs' counsel demonstrates bad faith by serving the instant motion to reinstate the Note of Issue on the same day that he signed a Compliance Conference Order providing that additional documents and reports be exchanged and that Plaintiffs shall file a Note of Issue on or before 3/31/09 after exchange of documents'; and (3) that Plaintiffs' counsel's Affirmation of Good Faith is disingenuous in light of the timing of Plaintiffs' motion, as well as their repeated failure to adhere to Uniform Court Rule 202.7, which was brought to Plaintiffs' attention in this Court's January 20, 2009 Order. (Citations omitted.) [*4]

In opposition to Dean's motion, Plaintiffs argue they are deprived of a speedy trial,' that plaintiff Michael Pacheco is injured, and that discovery is complete. None of these arguments properly addresses the issue of whether Plaintiffs' motion is frivolous' as that term is defined by 22 NYCRR 130-1.1. Plaintiffs also contend, in conclusory fashion, that [t]he rules of the Court allow for the restoration of the calender (sic) number at the discretion of the discovery judge.' Plaintiffs' counsel cites to no authority for such rule, and again fails to address this Court's prior order that set forth the procedure necessary for a party to reinstate a note of issue.

It should be noted further that this Court's prior Order found that the timing of Plaintiffs' motion clearly demonstrates lack of good faith'; that Plaintiffs' attorney's affirmation is also misleading in that it asserts that the depositions of third-party defendants . . . were not held, even though they were not due to be held for another three weeks'; and that Plaintiffs' counsel's lack of good faith in prematurely bringing this motion was compounded by his refusal to stipulate to a further discovery schedule on the return date.' The Court warned that [i]n the event that Plaintiffs file a disclosure motion without attaching a proper good-faith affirmation or prematurely file a motion involving disclosure, counsel may be subject to sanctions pursuant to 22 NYCRR 130-1.1 . . .' "

Plaintiffs' counsel, Thomas D. Wilson, did not appear at the scheduled hearing. An attorney did appear for Plaintiffs, and advised the Court that Mr. Wilson would not be appearing, and that the attorney present would be acting as "trial counsel" on the action. No apology or explanation was offered for Mr. Wilson's absence, nor was there an application for an adjournment, and the Court has received none from Mr. Wilson to this day. Attorneys for five other parties did appear.

Rule 130 (22 NYCRR 130-1.1) provides, in pertinent part, that "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct." That section also provides that "[i]n addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct ." For purposes of 22 NYCRR 130-1.1, conduct is deemed "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."

In making a determination as to whether conduct is "frivolous", the court considers, among other things, "the circumstances under which the conduct took place, including the time [*5]available for investigating the legal and factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." (See 22 NYCRR 130-1.1 [3].) In applying the rule, courts sometimes speak in terms of "good faith," although the term does not appear in the rule. (See Sakow v Columbia Bagel, Inc., 32 AD3d 689, 690 [1st Dept 2006]; Matter of Wecker v D'Ambrosio, 6 AD3d 452, 453 [2d Dept 2004]; Curcio v J.P. Hogan Coring & Sawing Corp., 303 AD2d 357, 358 [2d Dept 2003]; Kamruddin v Desmond, 293 AD2d 714, 715-16 [2d Dept 2003]; Levy v Carol Mgmt. Corp., 260 AD2d 27, 35 [1st Dept 1999].)

"Sanctions are retributive, in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics." (Id. at 34.)

"Where motions are redundant to matters already decided on the merits . . . , constituting a lengthy barrage of litigation to relitigate those already-decided matters . . . , but that protracted litigation continues, with rulings ignored, despite the court's warnings to cease delaying tactics . . . , sanctions are appropriate to punish frivolous litigation." (Id. ; see also Ireland v GEICO, 2 AD3d 917, 917 [3d Dept 2003] ["[a]ll of plaintiff's discovery issues had been previously determined by the court"]; Vedic Heritage, Inc. v Patel, 232 AD2d 477, 478 [2d Dept 1996] [court "had at least twice before denied identical relief in prior motions"].)

A sanction is "especially warranted" where, as here, the court "clearly advises a vexatious litigant of the baseless nature" of the conduct (see Levy v Carol Mgmt. Corp., 260 AD2d at 34-35), and where the party or counsel offers no "mitigating circumstance or persuasive reason for [the court's] forbearance," and the subject "apparently . . . has no regrets regarding his handling of th[e] litigation" (see Jones v Camar Realty Corp., 167 AD2d 285, 286-87 [1st Dept 1990].) A lawyer's failure to attend a hearing scheduled to address the lawyer's professional conduct, sending no apology or explanation or request for adjournment, bespeaks a lack of respect for the court and the lawyer's colleagues, and, perhaps most sadly, for the lawyer's own professional status.

None of the counsel who did appear at the hearing offered any evidence in support of an award for costs. (See Yenom Corp. v 155 Wooster Street Inc., 33 AD3d 67, 75 [1st Dept 2006]; 134-38 Maple Realty Corp. v Medina, 2003 NY Slip Op 50691 [U], * 3- * 4 [App Term, 2d Dept 2003].) Each spoke to the motion, to the Court's perception with some ambivalence. While appearing reluctant to be an instrument of sanction against a fellow member of the Bar, counsel expressed disenchantment and frustration over a perceived lack of seriousness with which many judges discharge their obligation to police unprofessional conduct.

In determining the appropriate amount of a sanction, the Court has considered the retributive and deterrent purposes of sanctions; the absence of any evidence as to the actual expense to the other parties of responding to Plaintiffs' motions; Mr. Wilson's apparent lack of [*6]regret or concern for the consequences of his conduct; and that Mr. Wilson is apparently a sole practitioner (see Jones v Camar Realty Corp., 167 AD2d at 288.) A review of the caselaw reveals that a sanction in the amount of $2500 has often been deemed appropriate for comparable frivolous conduct. (See Intercont'l Credit Corp. Div. of Pan Am. Trade Dev. Corp. v Roth, 78 NY2d 306, 308 [1991]; Matter of Minister, Elder & Deacons of Refm. Prot. Dutch Church v 198 Broadway, 76 NY2d 411, 415 [1990]; Panzarella v DeSantos, 36 AD3d at 736; Pinto v Pinto, 286 AD2d 377, 391 [2d Dept 2001].) There is no basis to conclude that either plaintiff Michael Pacheco or Elizabeth Pacheco participated in the objectionable conduct, or that any of the purposes to be served by an award of sanctions would be furthered by a judgment as to them.

Accordingly, within ten (10) days after service upon him of a copy of this Decision, Order, and Judgment with notice of entry, Thomas D. Wilson, Esq., Attorney Registration No. 1948959, shall pay $2500 to the Lawyers' Fund for Client Protection, 119 Washington Avenue, Albany, New York, 12210.

The Clerk of the Court shall enter judgment against Thomas D. Wilson, Esq. in the amount of $2500. (See 22 NYCRR 130.1-2.)

The Court is mailing a copy of this Decision, Order, and Judgment to Thomas D. Wilson, Esq., 186 Montague Street, Brooklyn, New York, 11201, to counsel for the various defendants and third-party defendants who appeared at the hearing, and to the Lawyers' Fund for Client Protection.

May 8, 2009__________________

Jack M. Battaglia

Justice, Supreme Court