Dashnaw v Shiflett

[*1] Dashnaw v Shiflett 2004 NY Slip Op 51540(U) Decided on August 16, 2004 City Court Of Clinton Clute, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2004
City Court of Clinton

MICHAEL A. DASHNAW, dba Adirondack Apartments, Plaintiff,

against

KEVIN SHIFLETT and KASIE (ROOD) SHIFLETT, Defendants.



C-415-2002



pro se plaintiff

Penelope D. Clute, J.

By Decision and Order dated July 2, 2004, this Court, inter alia, granted the Defendants' Motion to accept filing of a late Verified Answer and Ordered that the Defendants' Verified Answer dated September 19, 2002 was accepted.

In the July 2, 2004 Decision and Order, the Court found that both of the grounds of objection to the Verified Answer raised by the Plaintiff were completely without merit. The Plaintiff was placed on notice that the Court was considering whether the Plaintiff's conduct meets the definition of "frivolous" within the meaning of Part 130 of the Rules of the Chief Administrator § 130-1.1(c), and, if it does, whether costs and/or sanctions should be imposed.

The Court allowed the Defendants to submit their position on these issues by July 16, 2004, and gave the Plaintiff until July 30, 2004 to submit evidence and/or otherwise respond in writing. Nothing was received from the Defendants. On July 30, 2004 the Court received "Plaintiff's Response to the Court's July 02, 2004 Decision and Order."

In his Response the Plaintiff persists in his meritless argument that the Defendants' Verified Answer should be rejected as late eventhough the evidence is uncontroverted that it was mailed on May 24, 2004, the deadline set by the Court, and the settled law is unambiguous that a mailed pleading is served on the date it is placed in the mail.

The Plaintiff also again argues that the Verified Answer should not be accepted because a separate "affidavit of merit" was not included in the moving papers. He asserts that this is not a frivolous position despite the facts that (1) the Verified Answer was included in the moving papers and (2) County Court already found that "in this case, the Shifletts have made sufficient showing of meritorious defense . . . ." McGill, J., December 15, 2003 Decision and Order, at page 5.

The Court finds that the Plaintiff's motion practice in objecting to the Court's accepting the late filing of the Defendants' Verified Answer is "frivolous" within the meaning of the Rules of the Chief Administrator. There is no legal basis for his position; even after this was brought to his attention in this Court's July 2, 2004 Decision and Order, the Plaintiff continued to maintain the same [*2]position.

"What remedy [to impose for frivolous conduct] is dictated by considerations of fairness and equity. . . . Sanctions are retributive in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct . . . . The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics." Levy v Carol Management Corp., 260 AD2d 27, 34, 698 NYS2d 226 (1st Dept 1999).

The Court finds that Plaintiff Dashnaw has caused the unnecessary expenditure of the Court's resources to respond to a wholly frivolous motion, one that is completely without merit in the law and which cannot be supported by any reasonable argument; and further finds that there is a need to prevent the Plaintiff from engaging in further frivolous motion practice in this or any other matter. Accord Drummond v Drummond, 305 AD2d 450, 759 NYS2d 522, 523 (2d Dept 2003).

Accordingly, the Court awards sanctions against Mr. Dashnaw in the amount of $250.00. The Rules of the Chief Administrator allow sanctions up to $10,000 for each occurrence. It is hoped that the much lesser amount imposed here will serve the goals stated above and prevent future frivolous conduct.

The Court notes that Section 130-1.1(c) specifically provides that "frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section." The Plaintiff's June 7, 2004 "Affidavit/Memorandum of Law/Brief in Opposition to Defendants' Motion" states in its Wherefore Clause that the "Plaintiff respectfully requests . . . that costs and sanctions be awarded to plaintiff . . . ." The Court finds that this motion meets the definition of "frivolous conduct." However, the Court will not impose sanctions for this occurrence, but instead puts the Plaintiff on notice that sanctions will be imposed if there is a frivolous motion for sanctions in the future.

NOW, therefore, it is hereby

ORDERED that sanctions of $250.00 are imposed on the Plaintiff, Michael Dashnaw, and it is

ORDERED that, in accordance with § 130-1.2 of the Rules of the Chief Administrator, Judgment shall be entered against the Plaintiff in the amount of $250.00; and it is further

ORDERED that, within thirty (30) days from the date of entry of this Order, the Plaintiff shall deposit his $250.00 payment with the Clerk of Plattsburgh City Court for transmittal to the Commissioner of Taxation and Finance, as provided in § 130-1.3 of the Rules of the Chief Administrator.

ENTER: ____________________________

PENELOPE D. CLUTE

City Court Judge

Dated:Plattsburgh, New York

August 16, 2004