100 E. 21st St. Equities LLC v Cummings-Sharpe

[*1] 100 E. 21st St. Equities LLC v Cummings-Sharpe 2007 NY Slip Op 50948(U) [15 Misc 3d 1132(A)] Decided on April 16, 2007 Civil Court Of The City Of New York, Kings County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2007
Civil Court of the City of New York, Kings County

100 East 21ST Street Equities LLC, Petitioner-Landlord

against

Patricia Cummings-Sharpe, Ozenta Cummings, Respondent-Tenant.



L&T 90635/06



David Lyle Stern, Esq.

Stern & Stern

Attorneys for The Law offices of Scott Gross

50 Court Street - Suite 1100

Brooklyn, New York 1120

Sabrina B. Kraus, J.

On January 26, 2007 the Court held a hearing pursuant to an Order to

Show Cause, issued by the Court, sua sponte, on the issue of whether sanctions should be imposed against the attorneys for the Petitioner, in this matter, in connection with the service of motions on the pro se Respondent. In connection with said hearing, the Court considered previous incidents, in two other proceedings. In each of the three proceedings that were the subject of the hearing, the motion papers were prepared and signed by Virginia Glanda, Esq, an associate at the Law Offices of Scott D. Gross, which is the firm representing the petitioner in all three proceedings.

In each of the three proceedings, counsel for petitioner served a motion to restore the proceeding to the calendar, the motion filed in court had a different date then the motions produced by respondent as their service copy. In two of the cases, the court copy of the motion had a date that was changed by applying white out. In all three matters the respondent failed to appear on the return date, and later sought to vacate the default alleging that she had never been served with the copy filed with the Court. The specific facts leading up to the hearing are as detailed below.

86 Realty Property LLC v. Faith Bell, Index No. 88332/2006

This matter is a nonpayment proceeding, originally settled pursuant to a stipulation on October 4, 2006. The stipulation provided that Ms. Bell owed $671.00 through October 2006, and that she would pay it in two installments by the end of the month. The stipulation further provided that "On breach case may be restored." On Wednesday November 15, 2006, Petitioner moved, by notice of motion, for the entry of a judgment against Ms. Bell, based on her alleged [*2]breach. The return date on the notice of motion was written in by hand as November 15, 2006. The motion contained an attorney's affirmation stating that no prior request for the relief had been made, and on the return date, Ms. Bell failed to appear, and petitioner took a default judgment against her, including the entry of a money judgment in the amount of $671.00.

Later that day, Ms. Bell appeared in court seeking to vacate her default. She had with her a notice of motion, that contained a return date for November 13, 2006, which date had been altered by the application of white-out, and written over by hand. Ms. Bell alleged that she had never been served with the notice of motion filed with the court, which had the 15th as a return date and that Petitioner's attorneys had previously engaged in similar behavior.[FN1]

The Court signed Respondent's order to show cause, and gave her a return date of November 29, 2006. The Court amended the form order by hand, and wrote on the cover page of the motion to be served upon the petitioner's counsel, a specific order directing that petitioner must file written opposition papers to the motion which addressed respondent's allegations. The order read: "Resp. Alleges motion she was served with had a different return date & that Petitioner's counsel has engaged in this practice repeatedly. Petitioner must serve written opp." Ms. Bell was instructed to bring with her on the return date envelopes of any conflicting notices of motion, as well as the notices themselves.

On the November 29 return date, petitioner's counsel ignored the court's order to file written opposition papers, and instead sent the pro se respondent into the court room with an executed stipulation, acknowledging that all the rent due through November 2006 was paid and that the proceeding was discontinued. However, during the allocution of the stipulation, Ms. Bell reminded the Court that she had brought the requested documents with her. At such time the court directed that Scott Gross, attorney for the petitioner appear for the allocution.

The Court advised Mr. Gross that Ms. Bell had produced conflicting notices of motion, and the Court had observed other respondents in other proceedings making similar allegations. Mr. Gross stated his office did thirty to thirty-five motions a week, and that one or two per month were rejected by the clerk's office and required to be re-served. Mr. Gross stated that such rejections were either due to incorrect index numbers or the fact that he was seeking to restore "private" cases on days the part was reserved for NYCHA cases.[FN2] Mr. Gross stated "When I have a motion rejected for whatever reason downstairs, my practice is instead of sending an amended Notice of Motion, because I don't think that that's probably proper to send an amended Notice of Motion, my practice as instructed by my office is to put together a new motion with correct information on it and then serve it out. I have two separate mailings."

The Court replied that there were two points Mr. Gross should take note of. "The first [*3]thing that I would say to you is if you are subsequently serving another notice of motion, in a case where your first motion has been rejected by the Clerk's office, I think that the second motion should indicate this. I think that the Court should be aware of that at the time that the Court is looking at that. (That) this is not the first and only piece of paper that respondent was served with."

The Court further advised Mr. Gross that future motions to restore, where the tenant defaulted, would be granted to the extent of restoring the matter for a future date, and that the Court would send a post card to the respondent to insure that the respondent had received notice of the court date.

Mr. Gross responded defensively as follows:

MR. GROSS: I think that you're wrong to do that. I mean this Court has I've been hired to appeal, you know, a decision that was issued sua sponte by Your Honor to another firm. I mean I don't think that's right. I mean

THE COURT: I'm not sure what that has to do with this but

MR. GROSS: I mean you just in other words, it just seems to me that certain things that you just, you know, do off the cuff.

Mr. Gross stated that the Court was "overreacting with the penal nature" and that he felt "unfairly singled out."

In response to the Court's inquiry about his failure to comply with the Court's written order to put in written opposition papers addressing the tenant's allegation that she had never been served with the papers filed by petitioner, Mr. Gross stated that he had not even bothered to read the Court's order prior to the appearance.

281-291 Crown LLC v. Brandye Hartwell, Index No. 93882/06

The next proceeding in which similar circumstances came to this Court's attention was 281-291 Crown LLC v Hartwell. This non-payment proceeding was settled on October 18, 2006 pursuant to a stipulation wherein Ms. Hartwell agreed to pay all sums due within 30 days. Petitioner moved by notice of motion for a judgment against Ms. Hartwell based on her alleged breach. The notice of motion filed with the court had a return date of December 13, 2006. However, it was clear that the date had been changed by applying white out and hand writing a new date over the original.

On December 13, 2006 Ms. Hartwell failed to appear, and petitioner sought a default judgment. Petitioner's counsel did not either in the motion papers, or at any time when appearing in the Part on December 13, advise the Court that more than one notice of motion had been served on Ms. Hartwell. The motion papers indicate that they were served on November 28, 2006 and filed on November 29, 2006. The Court, in accordance with its previously stated intention, granted the motion to the extent of restoring the case to the calendar on December 27, 2006 and sent a post-card to Ms. Hartwell advising her of the return date.[FN3] [*4]

On December 14, 2006, Ms. Hartwell appeared in court with what she consistently alleged is the only copy of the notice of motion served on her. The return date on Ms. Hartwell's notice of motion was not changed with white out, and was clearly set for the 14th. The Court advised Ms. Hartwell, that she had not been defaulted, and that the Court had set a date for December 27, 2006. The Court asked that Ms. Hartwell return on said date, and bring her copy of her motion papers with her. On December 27, 2006, the case was adjourned due to the absence of the Judge to January 26, 2007.

On January 26, 2007, which was the same date as the hearing herein, Ms. Hartwell appeared in court, in the morning, with her copy of the notice of motion. The proceeding was settled per stipulation, the Court advised Mr. Gross that Ms. Hartwell had produced the document requested, but that the Court was not going to require that respondent remain for the hearing, absent a specific objection to her release, by Mr. Gross.

Mr. Gross stated that he had spoken with Ms. Hartwell himself earlier in the day and "she said to me that she only received one of them, which now actually I can see for myself that there is a systematic problem in my office ... that has to be addressed. And now I see for myself with my own eyes that I have a major issue that I had to resolve in my office and I am aware of it." (Emphasis added) Mr. Gross stated that he was not objecting to Ms. Hartwell not remaining for the afternoon hearing, and declined the opportunity to question respondent on the record stating "No, no. I can see for myself."

100 East 21st Street Equities LLC v. Cummings, Index No. 90635/2006

The Cummings case is a non-payment proceeding that was settled pursuant to stipulation dated September 29, 2006. The stipulation provided that Respondent owed $357.22 for rent through September 2006, and would pay same by October 20, 2006, and that on default Petitioner could seek to restore for a judgment and warrant.

Petitioner filed a notice of motion with the court on December 20, 2006, with a return date, which was written in by hand of January 5, 2007. The affidavit of service indicates that the papers were served by mail on December 19, 2006. On January 2, 2007, three days before the return date of the motion filed with the Court, Ms. Cummings appeared in Court with a copy of a notice of motion providing for a return date of January 2, 2007. Ms. Cummings stated in court and on the record, that as of January 2, 2007, this was the only notice of motion she had received and denied receipt of any other copies with different dates. (Tape No. K36463, Counter #

918). Ms. Cummings was advised by the Court that she need not come back on January 5, 2007, as the Court intended to deny the motion for improper service. Ms. Cummings left her copy of the notice of motion with the Court, and it was added to the court file.

On the return date of the motion filed in court, January 5, 2007, the Court denied the motion pursuant to a written decision, wherein the Court noted that based on previous warnings to counsel, which had gone unheeded, the Court was setting the matter down for a hearing to determine why petitioner's counsel should not be sanctioned for its continued course of conduct [*5]in this regard, and specifically noting that respondents had categorically denied being served with the papers filed with the court in these cases, and that counsel continued to make and serve essentially amended notices of motion, without labeling them as such, and without advising the court that previous papers with different dates had been served.

The Hearing

Testimony of Virginia Glanda Esq.

At the hearing Virginia Glanda, Esq., Scott Gross, Esq. , and Sharon Meta all testified. Ms. Glanda is the attorney who prepared and certified all of the motion papers at issue in this and the other proceedings. Ms. Glanda's testimony was contradictory and unpersuasive. Ms. Glanda stated that she picked all the court dates and wrote them in by hand on the motion papers, but she did not know how or by whom the dates were changed with white out. Ms. Glanda lacked a specific recollection of any details regarding the preparation of the motions in any of the three cases. Ms. Glanda testified that if a motion was rejected that she would simply re-serve a new one, and that she did not in the subsequent motions being served, add any provision advising the pro se respondents that they need not appear on the date in the first motion served. Ms. Glanda testified that she had no answer as to why she had not done so.

Ms. Glanda testified that she had no practice as to what was done with rejected motion papers, and the affidavits of service of same, and indicated that they would either be thrown away or saved randomly. Ms. Glanda repeatedly alleged during her testimony that documents from rejected motions may have been thrown out, and that she was under no obligation to maintain the originals. None of the original motion papers which were rejected were produced by Ms. Glanda or her office for the hearing, nor could she state for certain what happened to them.

Ms. Glanda had no explanation as to why the respondents in these cases were claiming they were not served with the motions filed in court. Ms. Glanda testified that she keeps no diary or calendar for her court appearances, and randomly picks dates for cases when in court. Ms. Glanda testified that after she prepares the motion papers and signs the certifications, she gives them to a paralegal to serve. She testified that sometimes changes are made after that point, and that changes may be made without her reviewing the papers that are served and filed. In response to a questions as to whether office employees had authority to make changes to motion papers after she had signed the certification, she stated "I don't even think I can answer that question because I put a date on it. If there is some sort of change, I won't even know if that is happening. So maybe Mr. Gross may know...".She initially testified that she could not answer as to whether the changes had to be authorized by her prior to being made stating "I don't think that I can answer that question without there being a negative inference. That's what I believe." However, on redirect she testified that all changes were required to receive prior authorization.Her testimony on the issue of whether changes would be made after she signed the certification without her knowledge and consent was inconsistent, evasive and ultimately she stated she did not know.

Ms. Glanda testified that Mr. Gross had never advised her after being warned by the court on the Bell Case on November 29, 2006, that when serving subsequent motions the affirmation in support should indicate that a prior motion had been served and rejected. [*6]Moreover, she testified that she felt that it was accurate to represent that no prior applications for the relief being requested had been made, that no further information should have been included in the subsequent papers and that the pro se tenants should know that the first motion being served did not count upon receiving the second motion. She testified that the motions print out automatically with said language, and that she was not aware that any additional information should be included, nor had she considered that issue. Ms. Glanda testified that she did not believe that she has any legal responsibility to prevent pro se tenants from appearing in court on the rejected motions, and she did not know what her responsibility was in that regard.

Ms. Glanda testified that she does white out dates and change them, but she could not answer whether she did this frequently or in these cases.

Testimony of Sharon Meta

Ms. Meta, a paralegal at the Law Offices of Scott Gross, testified regarding her practice in serving motion papers. She testified that she did not recall whether she made the white out changes to the dates on the notices of motion at issue in the hearing, but she stated that it was not often that she would make such changes. Ms. Meta testified that a complete copy of every motion sent to the court to be filed was added to the office file, and that each said motion would have attached to it a copy of the affidavit of service. Ms. Meta testified that she never removed such copies from the file to throw them away. Ms. Meta's testimony and practice in this regard was credible and contradicted statements by Ms. Glanda where she referred to throwing out originals after they had been rejected.

Ms. Meta also testified that on landlord-tenant motions, the affidavit of service was printed out automatically with the motions as printed, and that she only fills in her name, the date and signs the document before a notary. Ms. Meta testified that she never comes to court and has no responsibility for the filing of motion papers.Ms. Meta testified that while she had had occassion to use white out on a motion it does not happen often.

Testimony of Scott Gross, Esq.

Mr. Gross testified that his understanding of what happened on the record in the Bell matter on November 29, 2006 was that his office was "on probation" regarding motions to restore and the only communication he had with his staff regarding the warning from the court was that they had to be more careful to schedule the motions on Wednesdays or Fridays so that the motions would not be rejected. Mr. Gross could not recall whether he had discussed with Ms. Glanda the tenant's allegations that they were never served with the amended notices of motion filed in court. Mr. Gross testified that he took no other action in regard to the issues raised by the Court in the Bell case.

Mr. Gross acknowledged that there was a significant problem with the service and filing of the papers in the Hartwell case, in that the date on the paper served on Ms. Hartwell was for the 14th of December and the date of the papers filed in court as amended was a day earlier on the 13th. Mr. Gross acknowledge that this "was definitely a huge problem in his mind."

Mr. Gross stated that after receipt of the Court's January 5, 2007 order directing the instant hearing, commencing on or about January 14, 2007, he had adopted a practice with Ms. Glanda of adding a letter as an exhibit to amended notices of motions advising the respondent that his or her appearance was not required on the date in the first papers served. Ms. Glanda [*7]had made absolutely no mention of any such practice or discussion at any point during her testimony. Mr. Gross stated he had not previously adopted such a practice because he believed it was reasonable to assume pro se tenants would know to ignore the first set of papers upon receipt of a second set with a different date. He further testified that "In retrospect, you know, you could be right. You know, maybe someone who does not maintain any modicum of intelligence to pick up a phone when there's phone numbers when a tenant calls up and we speak to tenants that they would know not to come on the first.." and when asked to consider the possibility that a pro se litigant might not be as comfortable with motion papers he responded by stating "I don't believe that pro se people are as ignorant or as unknowing as is being suggested."

Mr. Gross repeatedly alleged that one or more of the respondents were lying when they alleged they received no other motion papers.

Decision

Pursuant to 22 NYCRR  130-1.1[d], a court may impose sanctions against an

attorney for frivolous conduct on the court's own initiative after a reasonable opportunity to be heard. The authority to impose sanctions and costs is within the court's sound discretion De Ruzzio v. De Ruzzio, 287 AD2d 896 (3rd Dept., 2001). In assessing whether to award sanctions, the court must consider whether the attorney adhered to the standards of a reasonable attorney. Principe v. Assay Partners, 154 Misc 2d 702 (Sup. Ct., NY Co., 1992); Columbia Bagel, Inc. v. Columbia Bagel, Inc., 6 Misc 3d 939 ( Sup. Ct., NY Co., 2004).

Pursuant to Part 130-1.1 frivolous conduct includes conduct which is completely without merit in law, is undertaken to harass or maliciously injure another, or asserts material factual statements that are false.

By signing the certification on court papers an attorney certifies that it is not frivolous based on knowledge information and belief formed after an inquiry reasonable under the circumstances.A false certification alone is sufficient grounds for the imposition of sanctions. DeRosa v. Chase Manhattan Mortgage Corp., 15 AD3d 249 (1st Dept., 2005).

"In determining whether the conduct undertaken was frivolous, the court shall consider among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal and or factual basis ... was brought to the attention of counsel..". 22 NYCRR  101-1.1(c)(3).

Conduct that has been deemed to be frivolous includes pleading inapplicable boilerplate defenses, showing up for conferences unprepared, and repeatedly serving motion papers but not filing them. See e.g. Schear v. Pearlman, N.Y.L.J., Mar. 16, 1992, Sup. Ct. Nassau Co.; Clark v. Delouvier, N.Y.L.J., Oct. 28, 2003, (Sup. Ct., NY Co.); Matter of Premo v. Breslin, 89 NY2d 995 (1997); Gerstein v. I Travel Inc., 169 AD2d 492, 564 NYS2d 364 (1st Dept., 1991).

In the case at bar, the conduct which the court finds to be frivolous was the repeated service and filing of essentially what were unlabeled amended notices of motion, which in no way indicated that a previous motion, with a different return date, had allegedly been served upon the respondent. By engaging in this practice, the attorney was intentionally causing the pro [*8]se respondents to face multiple court dates, without knowing on which date an appearance was necessary. The attorney was also not fully apprising the Court of all relevant circumstances behind the application, and, in particular, was not advising the Court, prior to seeking default judgments against pro se tenants, that more than one set of papers had been served on the tenant and that there may be a basis for confusion as to the appropriate return date, and thus some basis for the court not to enter a judgment against the defaulting tenant without further notice.

The frivolous nature of this conduct is further underscored by the attorneys' complete lack of regard for the warnings issued by the Court on the previous matters, complete lack of regard for the wasted time and energy of the pro se respondents, and the failure to comply with or even read Court orders regarding the issues herein prior to appearing on the relevant matters. The court during its November 29, 2006 discussion with Mr. Gross on the record suggested repeatedly that future applications involving amended notices of motion should in some manner indicate to the Court that more than one set of papers had been served on respondent. Petitioner's counsel ignored these suggestions and took absolutely no action to prevent continued occurrences.

CPLR 2214 (c) provides that "Each party shall furnish to the Court all papers served by him." Counsel could have let the court know about the alleged multiple services by simply annexing a copy of the rejected notice of motion as an exhibit to the new motion. Moreover, Ms. Glanda's testimony that her affirmation in each motion that no previous application for the relief sought had been made, was something automatically generated by the computer is insufficient given the circumstances herein. "The language closing applications which reads no prior application has been made for the relief requested herein' ... is not ceremonial." Ewerse v. Elghanayan, N.Y.L.J. Aug. 3, 1993, col. 2. Assuming arguendo, that this was an issue that had not occurred to the attorneys prior to the warning given by this court in the Bell case, there is no excuse for the attorneys continued disregard of the issue after being warned in Bell, that such applications should in some manner apprise the court that the respondent had been served with more than one set of motion papers, particularly when the attorney sought to obtain a default judgment against the non-appearing respondent.

The Court finds Mr. Gross' conduct on November 29, 2006 of appearing on the case, without having served the written opposition papers directed by the court in its written order, and then offering as an excuse that he had not bothered to read the order, an example of the behavior that indicates a contempt for the court, the litigants, and his obligations as an officer of the court. Rather than take the opportunity afforded to him by the Court, through the November 29, 2006 warning, to review the practice of his office in this regard, and make appropriate changes, Mr. Gross elected to continue with business as usual, feeling that the court's imposition of what he understood to be a "probationary period" required no further action or inquiry on his behalf. Indeed, Mr. Gross' consideration of the Court's warning in the Bell matter is encompassed by his statements on the record that the Court was overreacting, issuing decisions off the cuff as Mr. Gross found the Court was want to do, and unfairly singling him out and penalizing him.[FN4] [*9]

The attempt by Mr. Gross' office to obtain a default judgment against Ms. Hartwell on December 13, 2006, after the incident in the Bell matter, and without advising the Court that the notice of motion served on Ms. Hartwell contained a return date for December 14, 2006, was completely frivolous and in bad faith. At a minimum, Mr. Gross' office should have advised the Court of the other notice of motion, and request that the motion be passed to the next day.

Similarly the Court finds that the Associate, who prepared all of these motions, was intentionally evasive in her testimony regarding the issue of how, when and why the dates on the papers filed in court were changed by white out. While Ms. Glanda claims that Mr. Gross did not discuss in detail the discussion had with Mr. Gross on the record in the Bell matter, as Ms. Glanda was the attorney certifying in each of these cases that the application was not frivolous, the Court finds some further action on the part of Ms. Glanda in the review of these cases would have been appropriate, once she learned there was a problem requiring "probation" and allegations by the tenants that they were not being served with the papers. Even if Mr. Gross did not share these allegations with her , a simple review of the order to show cause in the Bell case would have enlightened Ms. Glanda as to one of the issues with these court papers.

Moreover, the fact that Ms. Glanda felt that she had no obligation to advise the tenants not to appear on the rejected motion dates, coupled with her testimony that she was not aware of any action she could have taken to prevent such unnecessary appearances, was not appropriate to her position as an officer of the court, and in light of Mr. Gross' subsequent testimony that a procedure had been established was not credible. Additionally, as noted above, Ms. Glanda's explanation that the language that no previous applications had been made was something automaticallygenerated by the computer and that she was under no obligation to modify or further specify the circumstances regarding attempted prior applications is also unsatisfactory.

The Court finds that the conduct taken in regard to the service of the motions, and in particular the continued conduct in this proceeding, after being warned and given the opportunity to take steps to address the situation, was frivolous as defined by part 130.1. and that the Law Offices of Scott Gross should be sanctioned for said conduct. "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." Levy v. Carol Management Corporation, 260 AD2d 27, 34 (1st Dept., 1999). The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party's conduct and prejudice to the adversary. Viacom v. Silverwood, 188 AD2d 1057 (4th Dept., 1992). Based on the foregoing, the Court sanctions the Law Offices of Scott Gross for its conduct in service of the motion in this proceeding, after previous warnings, in the amount of $2500.00 to be paid to the Lawyers Fund for Client Protection. [*10]

The other and more disturbing issue raised by the hearing, and the allegations made by the tenants, is the claim that the tenants were never served with the motion papers which were actually filed. This claim if substantiated would go beyond frivolous conduct, and would indeed speak to the honesty and trustworthiness of the attorney preparing and filing such papers to continue to practice law. If the papers actually filed were never served on the tenants, this would amount to a fraud upon the court as well as the filing of false affidavits of service with the court.

If said allegations are true, then Law Offices of Scott Gross engaged, on more than one occasion in the practice of filing false papers with the court, and intentionally taking defaults against pro se respondents, who were never even advised of the court date that had been scheduled. The fact that there was white out on the changed dates filed would be consistent with such an allegation. Additionally, each of these respondents personally made these allegations before the Court and the Court found that the respondents were credible in stating that they had not received a copy of the notice of motion with the actual return date.

Moreover, Mr. Gross when offered the opportunity to cross-examine or challenge Ms. Hartwell's statements, in this regard, did not do so and acknowledged that she was candidly stating what had happened, and that his office had a serious problem that needed to be addressed.

However, The Court finds that the nature and scope of an inquiry into what actually took place with regard to the alleged service of these motions and the papers filed, would go substantially beyond the issues in this non-payment proceeding, and indeed require the testimony and cross-examination of the witnesses at issue. Moreover, given the severity of such an allegation against an attorney, the Court feels that the attorney should have every opportunity to cross-examine and confront the witnesses to such behavior, prior to the court making such a determination. While the hearing in this matter did encompass the issues and documents from the previous cases, this was primarily as a background to the continued conduct, and in fact the hearing was only to determine whether the behavior in this proceeding was sanctionable.

Moreover, the Court is satisfied on the date of the hearing, Mr. Gross after taking the opportunity to speak with Ms. Hartwell, and review the papers in that matter did finally understand the serious nature of what was taking place. The Court surmises that at this point, Mr. Gross has reviewed his office policy and made the appropriate changes, and the Court notes that since the hearing in this matter, no further cases with similar circumstances have come to this Court's attention. Additionally, Mr. Gross was not himself involved in the preparation or filing of the motion papers, which were all certified and prepared by his Associate Ms. Glanda.

Section 100.3(d)(2) of the Rules Governing Judicial Conduct states that "[a] judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action." A substantial violation is typically one that involves an attorney's honesty, trustworthiness or fitness as a lawyer. Opinions 89-74 (Vol. IV); 89-54 (Vol. III). In general the question of whether there is a substantial likelihood that a substantial violation of the Code has been committed is a determination to be made by the Judge. Opinion 06-107, September 7, 2006.

After careful consideration, the Court can not say, on this record, that there is a substantial likelihood that Mr. Gross or Ms. Glanda have committed a substantial violation of the Code of Professional Responsibility, and for that reason declines to refer either attorney to the [*11]Departmental Disciplinary Committee.

This constitutes the decision and order of this Court.

Dated: April 16, 2007

Brooklyn, New York

_______________________

Hon. Sabrina B. Kraus

J.H.C.

TO:

Footnotes

Footnote 1:The Bell case was somewhat different than the other two papers in that in the Bell case at the hearing the attorneys surmised that there were as many as three different notices of motion at issue.

Footnote 2:In Part A in Kings County Housing Court cases where NYCHA is the petitioner are heard exclusively on Mondays, Tuesdays and Thursdays , and private cases are heard on Wednesdays and Fridays.

Footnote 3: The Court notes that initially a draft of a decision granting petitioner a default judgment had been prepared by a court attorney and inadvertently signed by the Court. However, when an individual from Mr. Gross' office appeared to collect the default, the Court realized the oversight, and amended the decision accordingly.

Footnote 4: Moreover, the Court notes that this is not the first instance in which Mr. Gross had been found by a court of not having taken appropriate precautions in regards to the entry of default judgments. In Capital Resources Corp. v. Doe, 154 Misc 2d 864, 586 NYS2d 706 (1992) Scott Gross represented the landlord in a matter where the Court found that even though Mr. Gross and his client had actual knowledge of the tenants name and address from a prior case they started a case against him as "John Doe". Judge Reichbach in his decision stated said conduct "skirted the very edges of sanctionable misconduct".