D.W. v R.W.

[*1] D.W. v R.W. 2012 NY Slip Op 50203(U) Decided on February 3, 2012 Supreme Court, Westchester County Connolly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 3, 2012
Supreme Court, Westchester County

D.W., Plaintiff,

against

R.W., et. al., Defendants.



24298/10

Francesca E. Connolly, J.

This decision follows a hearing conducted on November 15, 2010 to determine appropriate sanctions to be issued against the plaintiff pursuant to 22 NYCRR §130-1.1 for her frivolous conduct in filing a plenary action and subsequent motion practice, and the reasonableness of counsel fees to be awarded to defendants' counsel as costs. This decision is based upon the findings made by this Court in its prior decisions and orders on this matter, the history of the proceedings over a decade as reported in various decisions rendered at the trial and appellate levels, the testimony and evidence presented at the hearing, and the following documents:

Defendant's Affidavit in Support of Counsel Fees dated April 15, 20111-3

Plaintiff's Affidavit in Opposition to Counsel Fees dated May 6, 20114-9

Defendants' Post-Trial Submission, Exhibits10-12

Defendant's December 1, 2011 letter with billing sheets

through November 30, 201113-14

Plaintiff's Post-Trial Opposition15

PROCEDURAL AND FACTUAL BACKGROUND

The plaintiff settled her protracted divorce action with the defendant, R.W. over seven years ago. Since that time, she has engaged in extensive post-judgment litigation against him in an effort to vacate the parties' stipulation of settlement incorporated but not merged in the judgment of divorce on the grounds that she lacked the mental capacity to understand and agree to the terms of the agreement, and that it was unfair, unconscionable, the product of overreaching, fraud, or some variation thereof. Her numerous attempts to challenge the stipulation of settlement and judgment of divorce have been considered and rejected by several trial and appellate courts. [*2]

This hearing was ordered following a new round of litigation by the plaintiff against her ex-husband and others. On October 1, 2010, the plaintiff commenced a plenary action against 23 defendants, including her ex-husband, R.W., her children, her former in-laws, the defendant's former attorneys, and other entities, claiming breach of contract and fraud for their failure to disclose various assets during the divorce proceedings. The plaintiff, once again, sought to set aside the stipulation of settlement and vacate the judgment of divorce, and a recalculation of equitable distribution, an award of lifetime maintenance, counsel fees, damages in the amount of $30 million, and other relief.

In her 81-page complaint, the plaintiff alleged that she rummaged through her ex-husband's garbage cans that were left outside his residence for pick-up and discovered documents showing the fraud perpetrated upon her by the various defendants during the divorce proceedings more than six years earlier. She alleged the documents found in the garbage revealed pensions, IRAs, KEOGHs, profit-sharing accounts, deferred compensation plans, and elaborate tax-minimization and wealth preservation schemes that were never disclosed during the divorce proceedings.

In lieu of answering the complaint, on October 25, 2010, the defendants promptly moved to dismiss plaintiff's complaint, for sanctions and counsel fees pursuant to 22 NYCRR §130-1.1, and for a permanent injunction enjoining the plaintiff from commencing further actions regarding the divorce without first obtaining leave of court. Plaintiff cross-moved for sanctions. (Motion Sequences 1,2, and 3) The decision and order dated March 31, 2011, granted the defendants' motion to dismiss plaintiff's complaint, enjoined the plaintiff from instituting further actions or filing other motions without first obtaining written leave of court, and granted defendants' motion for sanctions and counsel fees pursuant to 22 NYCRR §130-1.1.

Sanctions and counsel fees were awarded based upon this Court's finding that the plaintiff's conduct was frivolous and undertaken to harass or maliciously injure the defendants. The defendants' attorney was directed to submit an affirmation of services rendered in connection with the motion to dismiss, and the plaintiff was given an opportunity to oppose the reasonableness of the fees and request a hearing on the issue.

The defendants' counsel submitted an affirmation establishing the expenditure of 48.05 hours preparing the motion to dismiss at the hourly rate of $450.00 for the partner's time and $295.00 for the associate's time, consistent with the retainer agreement, which was also filed and submitted. Defendant's counsel sought a total of $20,517.50, plus disbursements of $172.40, and sanctions in connection with the motion to dismiss. The plaintiff opposed the application, primarily arguing that the defendants did not comply with the rules governing attorney conduct in matrimonial actions set forth in 22 NYCRR §1400.3. At plaintiff's request, a hearing was scheduled for September 9, 2011 on the reasonableness of counsel fees and the amount of sanctions to be imposed.

Thereafter, and without written leave of court as required by the March 31, 2011 order, the plaintiff moved to renew and reargue the March 31, 2011 decision, and [*3]requested other affirmative relief, including compensation for her time and costs associated with making the motion. The defendants cross-moved for contempt, sanctions, and counsel fees. (Motion Sequences 4 and 6) While these motions were pending but not fully submitted, the plaintiff moved again, without first obtaining written leave of court, for a default judgment and to "reverse" the decision and order dated March 31, 2011. (Motion Sequence 5).

By decision and order dated June 10, 2011, the plaintiff's motion to "reverse" was denied based on her failure to obtain written leave of court before filing the motion, and because the motion, which also sought affirmative relief including, once again, an order vacating the stipulation of settlement and judgment of divorce, was frivolous and without merit. This Court found that plaintiff's continuous abuse of the judicial process by engaging in meritless litigation was intended to harass and maliciously injure the defendants. This Court indicated that it was inclined to impose a monetary sanction in the amount of $5,000.00 pursuant to 22 NYCRR §130-1.1, but gave the plaintiff an opportunity to be heard on the issue of sanctions at the hearing scheduled for September 9, 2011. (22 NYCRR §130-1.1[d].)

Thereafter, in its decision and order dated August 30, 2011, this Court denied the plaintiff's motion to renew and reargue and her request for compensation associated with the motion, finding the motions to be meritless and nothing more than continued vexatious litigation against the defendants (Motion Sequence 4), and granted the defendants' cross-motion for sanctions (Motion Sequence 6). Although this Court considered that portion of the motion seeking reargument without prior approval based upon the narrow window within which to file such a motion, plaintiff's additional requests for relief were in flagrant violation of the March 31, 2011 order requiring written leave of court prior to filing a motion. Accordingly, this Court ordered a hearing scheduled for September 9, 2011, to give the plaintiff an opportunity to be heard as to why she should not be sanctioned in the amount of $10,000.00 due to her violation of the injunction.

The hearing on sanctions and counsel fees was scheduled for September 9, 2011. At that time, the defendant, R.W., appeared with his counsel ready to proceed. The plaintiff appeared pro se and requested an adjournment to retain counsel. She also provided the Court with a copy of a letter from her treating neurologist, dated September 6, 2011. Although this letter was not in admissible form, this Court considered it for the limited purpose of addressing the plaintiff's request for an adjournment. The letter stated that the plaintiff suffers from a traumatic brain injury and, at a minimum, needs assistance for her hearing difficulties. He also recommended "written accommodations to compensate for her oral and aural deficiencies and cognitive difficulties," but did not specify the type of accommodations. This Court granted plaintiff's request for an adjournment of the hearing to November 15, 2011 to allow her the opportunity to obtain counsel and for the court to make arrangements for a listening device for the plaintiff to use during the hearing.

On November 15, 2011, the plaintiff appeared for the hearing without an attorney. However, she brought a person with her, described as a "note-taker," to assist her during [*4]the hearing. Although the note-taker was an attorney, she specifically represented to the court that she was not appearing as counsel for the plaintiff. The court provided the plaintiff with a listening device to use during the hearing and allowed the note-taker to sit beside the plaintiff at counsel table. Plaintiff made no other requests for accommodations. The hearing was conducted and completed that day.

DISCUSSION/ANALYSIS

The court, in its discretion, may award any party or attorney in any civil action or proceeding, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct. In 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. (22 NYCRR §130-1.1 [a].) Conduct is deemed frivolous if: (1) it is completely without merit in law or fact 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].) Frivolous conduct includes the making of a frivolous motion for costs or sanctions under this section. (Id.) In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) 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. (Id.)

An award of costs or the imposition of sanctions may be made either upon motion or upon the court's own initiative after a reasonable opportunity to be heard. (22 NYCRR §130-1.1 [d].) In no event shall the amount of sanctions imposed exceed $10,000.00 for any single occurrence of frivolous conduct. (22 NYCRR §130-1.2.) There is no similar limit on the amount the court can award as costs in the form of attorney's fees and expenses. (See Greene v. Merchants & Businessmen's Mutual Insurance Company, 259 AD2d 519 [2d Dept 1999].)

This Court has already determined that the plaintiff's conduct in filing the plenary action to vacate the stipulation of settlement and judgment of divorce, and other relief, was without merit and was undertaken to harass and maliciously injure the defendants. It has now been over a decade since the divorce action was commenced and over six years since the judgment of divorce was entered. Nonetheless, plaintiff continues in her campaign against the defendants despite the injunction against her. At the hearing on November 15, 2011 the plaintiff was afforded an opportunity to be heard on the imposition of sanctions for her frivolous conduct and the reasonableness of the counsel fees sought by the defendants. However, other than making a conclusory claim that she did not believe her conduct was frivolous, no convincing reasons were established to avoid the imposition of sanctions. [*5]

"[T]he authority to impose sanctions or costs is left to the court's sound discretion." (Landes v. Landes, 248 AD2d 268, 269 [1st Dept 1998].) This Court has considered the prolonged history of this litigation and the numerous, unsuccessful, post- judgment efforts the plaintiff has made to vacate the stipulation of settlement and judgment of divorce. In addition to instituting the meritless plenary action, plaintiff's conduct in filing motions seeking to renew, reargue, reverse, and other affirmative relief, without leave of court in violation of the injunction, was deemed frivolous. Plaintiff's unrelenting thirst for litigation despite this case having concluded over six years ago by the filing of a judgment of divorce, demonstrates her intention to use the courts as a continued means to harass the defendant, R.W., and others. Accordingly, both costs, in the amount of actual expenses and reasonable counsel's fees, and sanctions for each occurrence of frivolous conduct are warranted. (22 NYCRR §130-1.1.)

In fixing the amount of costs and sanctions, this Court has taken into account that plaintiff was awarded a sizeable monetary settlement in the matrimonial action and it is likely she has the financial means to continue litigating into the foreseeable future. Another consideration in fixing the amounts imposed as costs and sanctions is the need to deter the plaintiff from continuing her relentless campaign of harassment and torment against the defendant R.W. through the exploitation of the legal system. (Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York v. 198 Broadway, Inc., 76 NY2d 411, 415 [1990].)

Attorney's Fees

"A reasonable attorney's fee is commonly understood to be a fee which represents the reasonable value of the services rendered and factors to be considered include (1) the time and labor required, the difficulty of the questions involved and the skill required, (2) the attorney's experience, ability and reputation, (3) the amount involved and benefit resulting from the services, (4) the customary fee charged for similar services, (5) the contingency or certainty of compensation, (6) the results obtained and (7) the responsibility involved." (Galasso Langione & Botter, LLP, v. Liotti, 22 Misc 3d 450, 452-453 [Sup Ct Nassau Co 2008]; Matter of Freeman, 34 NY2d 1, 9 [1974].)

At the hearing, Joseph R. Miano, Esq., counsel for the defendants, testified regarding his experience, training and education, billing practices, and the retention of his law firm, Miano & Colangelo, by the defendant, R.W., in connection with the defendants' defense of the plenary action. Computer generated pre-bill worksheets for legal services provided from October 5, 2010 through November 14, 2011 were submitted into evidence. Although referenced as "pre-bill worksheets," these were the bills generated by the Miano & Colangelo billing program and sent to its clients. Mr. Miano testified that his hourly rate is $450.00 and that his associate's hourly rate is $295.00. He further testified that as of the date of the hearing, the firm spent 104.65 hours defending the plenary action and related motion practice resulting in legal fees of $42,600.00. There was an additional $313.29 expended in actual costs, making the total legal fees and costs $42,913.29. As [*6]of November 15, 2011, the date of the hearing, the defendant, R.W., had paid $15,622.00 towards these fees.

Since "an award of reasonable attorney's fees may include the value of the time expended in proving the value of the services" (See Galasso Langione & Botter, LLP, v. Liotti, 22 Misc 3d at 453), the defendant was granted leave to submit additional billing statements for legal fees incurred in connection with the hearing and his post-hearing submission. The additional pre-bill worksheets submitted by defendants' counsel show further billing in the amount of $3,622.00 for continued preparation for the hearing, the attendance at the hearing, and for research and preparation of the post-trial submission. The total costs incurred by defendant R.W.for work associated with defending the plenary action commenced by the plaintiff and her subsequent motion practice totals $46,535.79, which includes $46,222.50 in legal fees and $313.29 in actual expenses.

The retainer agreement between R.W. and the firm of Miano & Colangelo, signed on October, 2010, was submitted into evidence. It sets forth the hourly rate of the partners as well as for the associates and paralegals. The pre-bill worksheets show that the defendants' billings were consistent with the retainer agreement.

This Court finds the testimony of Mr. Miano to be credible. He is a respected matrimonial attorney in Westchester county. The rates charged for his services and the services of personnel under his supervision are reasonable. Considering the number of hours of judicial resources unnecessarily expended on this matter since the plenary action was filed in October of 2011, the number of hours billed by Mr. Miano is reasonable. Additionally, the total fees charged for the work performed from October 5, 2010, the date Mr. Miano testified he was retained, to November 30, 2011, the date the post-trial submission was completed, are fair and reasonable. However, the legal fees incurred that relate to an appeal in the amount of $3,828.50 will not be awarded, as they fall within the purview of the Appellate Division. (See Id. at 452)

Plaintiff's objections to the award of counsel fees are without merit. She claims the pre-bill worksheets submitted into evidence are insufficient, and that counsel was required to present to the court the actual bills sent to the client on firm letterhead. However, the pre-bill worksheets are the bills Miano & Colangelo sent to its clients and they sufficiently provide the court with corroborating evidence to support the counsel fee request. (See Id. at 451) Moreover, contrary to plaintiff's claim, the failure of defendants' counsel to present the defendants with a revised retainer agreement to execute for his new law firm, "Law Offices of Joseph R. Miano," is not fatal to an award of counsel fees. (See Gross v. Gross, 36 AD3d 318 [2d Dept 2006]; see also Landes v. Landes, 248 AD2d 268 [1st Dept 1998].)

Plaintiff's argument that counsel fees should not be recoverable from the plaintiff because defendants' counsel failed to comply with 22 NYCRR Part §1400 is also rejected. Considering the extraordinary circumstances presented here, including the procedural posture of these proceedings, where the complaint was dismissed before issue was ever [*7]joined, and the substantial compliance with the rules by defendants' counsel, an award of counsel fees as costs to the defendants is warranted.

In order to "address abuses in the practice of matrimonial law and to protect the public" court rules were promulgated to govern attorney conduct in domestic relations matters. (Gross v. Gross, 36 AD3d 318, 322 [2d Dept 2006]; 22 NYCRR §1400.) An attorney may recover counsel fees from an adversary spouse where there is substantial compliance with 22 NYCRR §1400.3, which requires the execution and filing of a retainer agreement setting forth the terms of compensation and the nature of services to be rendered. (Wagman v. Wagman, 8 AD3d 263 [2d Dept 2004]; Sherman v. Sherman, 34 AD3d 670, 671 [2d Dept 2006]; Mulcahy v. Mulcahy, 285 AD2d 587 [2d Dept 2001].) "Generally, the finding of a lack of substantial compliance has been based upon a complete, nearly complete or flagrant disregard for the applicable rules....On the other hand, a technical violation which does not undermine the underlying policy of protecting the public from known abuses in the field of matrimonial law will not prevent a recovery." (Reisman, Peirez & Reisman LLP v. Gazzara, 15 Misc 3d 1113(A), 4 [Sup Ct Nassau Co 2007].)

Considering the facts and circumstances presented here, the failure of defendants' counsel to file the retainer agreement with the court at an earlier date should not be considered a violation of the rules warranting a denial of counsel fees. Pursuant to 22 NYCRR §1400.3 and 22 NYCRR §202.16 (c), an executed copy of the retainer agreement must be provided to the client and filed with the court with the statement of net worth. Pursuant to Domestic Relations Law §236B (4)(a), the statement of net worth shall be provided within 20 days of receipt of a written notice demanding the same or within 10 days after joinder of issue, or, pursuant to 22 NYCRR §202.16 (f)(1)(i), within 10 days before the preliminary conference. Here, no triggering event occurred under the rules obligating defendants' counsel to file the statement of net worth and accompanying retainer agreement. Since the plaintiff never served a written demand for a statement of net worth, nor was issue ever joined by virtue of the defendants' filing of a motion to dismiss in lieu of an answer to the complaint, or a preliminary conference ever scheduled, the time to file the net worth statement and retainer agreement never accrued before the complaint was dismissed.

Under the facts presented here, where the initial action is found to be frivolous, or unlawful ab initio, defendants should not be penalized for a technical violation of the rules by denying them a recovery for legal fees and expenses unnecessarily incurred. To rule otherwise would be to permit a litigant in a matrimonial action to use the rules as a shield for protection against the consequences of his or her frivolous conduct.

None of the omissions by defendants' counsel, such as the failure to establish that billing was sent to the client every 60 days in a case where the complaint was dismissed in about five months, or the failure to file the retainer agreement with the court, or the fact that the retainer agreement only reflects the month and year it was executed but not the day, nor any of the other slight omissions by defendants' counsel implicates any abuse for [*8]which the rules were promulgated. This Court finds based upon its sound discretion in granting an award of counsel fees that defendants' counsel substantially complied with 22 NYCRR §1400. Moreover, because the equities in this case cry out for an award of counsel fees in favor of the defendant as costs under 22 NYCRR §130-1.1(a), this Court finds that any technical deviation from the court rules governing attorney conduct in matrimonial actions by defendants' counsel is both insubstantial and inconsequential. The defendants' counsel has substantially complied with the rules and should be entitled to the reasonable fees requested.

Subtracting the fees incurred as a result of appellate litigation in the amount of $3,828.50 from the reasonable legal fees of $46,222.50, the Court awards judgment against the plaintiff and in favor of defendant's counsel, Joseph Miano, Esq., for reasonable attorney's fees in the amount of $42,394.00, plus actual expenses reasonably incurred in the amount of $313.29. The total amount of the judgment as costs pursuant to 22 NYCRR §130-1.1(a) is $42,707.29. From this amount, once paid by the plaintiff, Mr. Miano shall reimburse the defendants for the attorneys' fees actually paid to him.

Sanctions

"The making of frivolous and unnecessary motions warrants the imposition of sanctions, [1] especially where counsel is warned previously about frivolous conduct, [2] where counsel's conduct creates needless work for the court,[3] or where it is clear the motion is made primarily to harass another, [4] or to delay or prolong the resolution of litigation." (24 NYJur 2d, Costs in Civil Actions §82.) Costs and sanctions may be imposed against an offending party or attorney to punish past conduct and to deter them from engaging in further frivolous conduct. (See Levy v. Carol Management Corporation, 260 AD2d 27, 34 [1st Dept 1999]; Minister, Elders and Deacons of Reformed Protestant Dutch Church of the City of New York v. 198 Broadway, Inc., 76 NY2d at 415.)

The plaintiff's plenary action was nothing more than a recast version of her prior applications and arguments seeking to vacate the judgment of divorce. She has had ample opportunity to litigate the issues she raised in her plenary action at both the trial and appellate court levels. She abuses the judicial process by repeatedly engaging in litigation that has no factual or legal merit, and her unreasonable behavior has been at a significant cost to the defendants. The filing of a patently frivolous plenary action warrants an order of sanctions against the plaintiff in the amount of $2,500.00.

Subsequent to this Court's dismissal of the plenary action, and despite the clear directives of the March 31, 2011 decision and order enjoining the plaintiff from commencing any further litigation with respect to the divorce against the defendants without first obtaining written leave of court, the plaintiff immediately filed two additional motions. Both of these motions were filed without any efforts on the plaintiff's part to obtain written leave of court. In addition to the motion to renew and reargue, and the procedurally improper motion to "reverse," the motions sought other affirmative relief, including a default judgment against the other 23 defendants, an upward modification of maintenance, [*9]reimbursement for legal and expert expenses, and other relief previously sought in the underlying divorce action.

These motions were filed in flagrant violation of the injunction imposed by this Court and demonstrate the plaintiff's intention to continue abusing the judicial process by engaging in meritless litigation. The plaintiff's continuous filing of unauthorized correspondence and papers with the court, following the filing of the improper motions, in an effort to "clarify" or to "comment on the record," have posed a substantial burden on the court's judicial resources. "In this time of budgetary constraints, when our Courts have an increased caseload but less funding, the Court cannot countenance the continuation of actions which waste scarce judicial resources." (See HSBC Bank USA N.A. v. Taher, 34 Misc 3d 1201(A), 15 [Sup Ct Kings Co 2011].)

Accordingly, plaintiff's motion to "reverse" the decision and order dated March 31, 2011, filed without leave of court in violation of court order, was a continued abuse of the judicial process by the plaintiff, motivated by ill will and the desire to harass the defendants, warranting sanctions in the amount of $5,000.00. Plaintiff's motion to renew and reargue, also meritless, was continued vexatious litigation against the defendants. The plaintiff's motion also sought additional requests for relief in violation of the March 31, 2011 order requiring prior court approval, warranting sanctions in the amount of $10,000.00.

As set forth above, the plaintiff is found to have three separate occurrences of frivolous conduct. The first, in filing the meritless plenary action warranting sanctions in the amount of $2,500.00; the second, in filing the motion to "reverse" and for additional affirmative relief warranting sanctions in the amount of $5,000.00; and the third, in filing the motion to renew and reargue and for other affirmative relief warranting sanctions in the amount of $10,000.00. (22 NYCRR §130-1.2.) Judgment in these amounts shall be entered, and the plaintiff, who is not an attorney, is directed to deposit payment with the Clerk of the Court for transmittal to the Commissioner of Taxation and Finance pursuant to 22 NYCRR §130-1.3. (See Greene v. Merchants & Businessmen's Mutual Insurance Company, 259 AD2d 519 [2d Dept 1999].)

Once again, the plaintiff is reminded that she is enjoined from commencing any further actions or filing further motions with respect to the divorce action against any of the named defendants herein without first obtaining written leave of Court granting permission to do so.

Based upon the foregoing, it is hereby

ORDERED, that, after determining that the plaintiff engaged in three separate occurrences of frivolous conduct as defined in 22 NYCRR §130-1(c), and granting the plaintiff a reasonable opportunity to be heard at a hearing, the defendants' counsel, Joseph R. Miano, Esq., is awarded costs for actual expenses and reasonable attorney's fees in connection with the defendants' defense against the plenary action and related motion practice, and that the plaintiff shall be sanctioned pursuant to 22 NYCRR §130-1.1 (a) and (b); and it is further

ORDERED, that reasonable attorney's fees are established at $42,394.00, and the actual expenses reasonably incurred are established at $313.29, for a total of $42,707.29; and it is further

ORDERED, that a judgment shall be entered as costs against the plaintiff and in favor of Joseph R. Miano, Esq., in the amount $42,707.29; and it is further

ORDERED, that upon payment of the judgment for costs by the plaintiff in the amount of $42,707.29, Joseph R. Miano, Esq., shall reimburse the defendants for the actual attorney's fees and costs actually paid to him; and it is further

ORDERED, that pursuant to 22 NYCRR §130-1.3, the plaintiff shall pay a sanction of $2,500.00 to the Clerk of the Court for transmittal to the Commissioner of Taxation and Finance for her institution of a patently frivolous plenary action, which constitutes a single occurrence of frivolous conduct; and it is further

ORDERED, that pursuant to 22 NYCRR §130-1.3, the plaintiff shall pay a sanction of $5,000.00 to the Clerk of the Court for transmittal to the Commissioner of Taxation and Finance for filing a motion (Sequence 5) to "reverse" the decision and order dated March 31, 2011, without written leave of court in violation of the March 31, 2011 decision and order, which constitutes a single occurrence of frivolous conduct; and it is further

ORDERED; that pursuant to 22 NYCRR §130-1.3, the plaintiff shall pay a sanction of $10,000.00 to the Clerk of the Court for transmittal to the Commissioner of Taxation and Finance for filing a motion (Sequence 4) to renew and reargue and for other relief, filed without leave of court in violation of the March 31, 2011 decision and order, which constitutes a single occurrence of frivolous conduct.

The defendants shall submit the aforementioned judgments to the Clerk for entry.

Any other relief requested and not decided herein is denied.

This constitutes the Decision and Order of this Court.

Dated: White Plains, New York

February 3, 2012

Francesca E. Connolly, J.S.C.