Leskinen v Fusco

[*1] Leskinen v Fusco 2006 NY Slip Op 52342(U) [13 Misc 3d 1244(A)] Decided on October 10, 2006 Supreme Court, Bronx County Stinson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2006
Supreme Court, Bronx County

Marek Leskinen, an infant by his mother and natural guardian, MARGARET LESKINEN, , Plaintiff(s),

against

John J. Fusco and RITA G. BOLSTAD, Executors of the Estate of LOUIS A. GENTILE, M.D., LAWRENCE HOSPITAL, OUR LADY OF MERCY MEDICAL CENTER and RICHARD DeVEAUX, M.D., Defendant(s).



15135/98

Betty Owen Stinson, J.

Pursuant to the Order of the Appellate Division, First Department, of May 31, 2005, this court's decision of July 8, 2004 was modified by vacating the award of sanctions and interest, awarding 50% of the deposited attorney's fee and accrued interest to be paid to the non-party cross appellant, Dov Apfel, Esq., ( Apfel), and remanded the matter to the Supreme Court for further proceedings on whether sanctions should be imposed against non-party appellants, Shearer & Essner, LLP and David Shearer (Shearer) individually.

On August 10, 2005, the non-parties appeared before me for a hearing to give the non-party appellants, Shearer & Essner, LLP and Shearer, a reasonable opportunity to be heard on the issue of the sanctions. At the hearing, Mr. Shearer testified concerning his acts and omissions surrounding the settlement, the infant's compromise order, and his actions after the court learned that at the time he appeared before the undersigned for the infant's compromise order there was a dispute over the sharing of attorney fees between Shearer and Apfel, a dispute which arose because he was asserting that he was entitled to the entire attorney fee based on Dov Apfel's non-admission to practice law in the State of New York.

Upon review of the pleadings, decisions, correspondence and testimony the court finds that the actions of Mr. Shearer before this court on December 15, 2003 in failing to advise the court of the pending Order to Show Cause concerning the attorneys' fee dispute in this matter; and the delays caused by his actions or lack of action to procure even the settlement funds due the plaintiffs which were not affected by fee dispute but which took second seat to his self- interest to claim the entire fee, and in general the misrepresentations made by him to the court and others caused unnecessary delays which prevented plaintiffs from receiving the agreed upon settlement funds in a timely manner.

Moreover, his failure to be open and honest with the court has caused considerable delay and required expenditure of legal and judicial resources not normally associated with the settlement of a case and in particular finalization of an Infant's Compromise Order. Lastly, the [*2]court finds that Mr. Shearer's intentional withholding of information that was necessary and vital to the court is tantamount to the assertion of a material fact that was false.

For the foregoing reasons, the court hereby sanctions David Shearer, Esq., and the law firm of Shearer & Essner, LLP, jointly, for the actions of partner David Shearer, Esq. in the sum of $5,000.00 and directs that payment be made to the Lawyer's Fund for Client Protection as provided in 22NYCRR§130-1.3.

Payment of the foregoing sanction shall be made from the funds being held by the carrier for Our Lady of Mercy Medical Center, representing the Shearer & Essner share of the attorneys fees as determined by the Appellate Division, First Department in its May 31, 2005 decision. Payment shall be made in accordance with the decision and Order of even date issued on the motion of co-counsel for sanctions and fees, that is, within thirty (30) days of service of a copy of this Order upon the attorney for defendant Our Lady of Mercy Medical Center.

This is the decision and Order of the court.

October 10, 2006

Bronx, New YorkBetty Owen Stinson, J.S.C.

* Decision and Order amended solely to substitute Our Lady Of Mercy Medical Center wherever Lawrence Hospital" appears in the body of the decision.