Congregation Yetev Lev D'Satmar, Inc. v Nachman Brach Inc.
Annotate this CaseDecided on September 10, 2008
Supreme Court, Kings County
Congregation Yetev Lev D'Satmar, Inc., Ludovick Weisz and Jacob Schonfeld, Plaintiffs
against
Nachman Brach Inc. f/k/a 26 ADAR N.B. CORP., CONGREGATION BETH JOEL, BETH FEIGE INC., NACHMAN BRACH and BAY RIDGE FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendants.
13224/90
Appearances:
Plaintiff:
David M. Berger, Esq.
Michael Cohen Esq.
Tenenbaum Berger, LLP
Brooklyn NY
Defendant
Noel W. Hauser, Esq.
NY NY
Arthur M. Schack, J.
This matter resulted from protracted litigation dealing with the ownership of
various real property at 533-541 Bedford Avenue, Brooklyn, New York, amidst the
factional schism in the Satmar Hasidic community. The tortured and tangled history of this
dispute is chronicled in Justice Melvin Barasch's decision, Congregation Yetev Lev D'Satmar,
Inc. v Kahan (5 Misc 3d 1023 (A) [Sup Ct, Kings County 2004]), and my decision
(Congregation Yetev Lev [*2]D'Satmar, Inc. v 26 Adar N.B.
Corp. (12 Misc 3d 1173 (A) [Sup Ct, Kings County 2006]).
In October 2004, when this matter was assigned to me, the only matter remaining to be resolved was the counterclaim of defendant NACHMAN BRACH, INC. f/k/a 26 ADAR N.B. CORP. (BRACH), for the use and occupancy of the 533-541 Bedford Avenue premises as a synagogue by plaintiff CONGREGATION YETEV LEV D'SATMAR, INC. (CYL), and the other plaintiffs. BRACH is wholly owned by Nachman Brach, who lost his status within the Satmar community in various leadership disputes. In the instant matter, corporate defendant BRACH, and its owner, Mr. Brach, failed to comply with five discovery orders issued by me. As a result of these violations, I held in my April 1, 2008 decision and order, Congregation Yetev Lev D'Satmar, Inc. v Nachman Brach, Inc. (19 Misc 3d 1111 [A]), at 2, that "[t]he Brach defendants' and their counsel's clear pattern of dilatory and obstructive conduct, demonstrated by their continued disobedience to Court orders, leaves the Court with no choice other than granting plaintiffs' order to show cause and dismissing the instant action with prejudice."
Therefore, I ordered, at 11:
that it appearing that Noel Hauser, Esq. engaged in "frivolous conduct,"
as defined in the Rules of the Chief Administrator, 22 NYCRR 130-1 (c)
and that pursuant to the Rules of the Chief Administrator, 22 NYCRR
130.1.1 (d), "[a]n award of costs or the imposition of sanctions may be
made upon motion . . . or upon the court's own initiative, after a
reasonable opportunity to be heard," this Court will conduct a hearing
affording Mr. Hauser "a reasonable opportunity to be heard," before me in
Part 27, on Friday, May 16, 2008, at 2:30 P.M., in Room 479, 360 Adams
Street, Brooklyn, NY 11201.
The hearing was held on May 30, 2008. Pursuant to 22 NYCRR § 130-1.2, after reviewing the May 30, 2008 Part 130 hearing minutes and my prior orders and decisions in the instant matter, this is the "written decision setting forth the conduct on which the award or imposition [of costs and sanctions] is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate." Pursuant to 22 NYCRR § 130-1.1 (a), the Court awards costs to plaintiffs of $10,000.00 for reasonable attorney's fees, and imposes a sanction of $4,000.00 upon defendant's counsel, Noel Hauser, Esq., for his "frivolous conduct" that "is completely without merit in law," in violation of 22 NYCRR § 130-1.1 (c).
Background
In my April 19, 2005 decision and order in this matter I vacated a prior note of issue and certificate of readiness to give plaintiff CYL additional time to track down witnesses and conduct additional discovery. I ordered examinations before trial to be
completed within 180 days after the date of the notice of entry of this order, and the due date for a new note of issue and certificate of readiness to be 210 days from the date of the notice of entry of this order. Two days later, BRACH and Mr. Hauser appealed my decision and order and still failed to complete discovery as I had ordered. The Appellate Division, Second Department, unanimously affirmed my April 19, 2005 decision and order (Congregation Yetev Lev D'Satmar, Inc. v 26 Adar N.B. Corp, 32 AD3d 376 [2d Dept 2006]), holding that "[t]he Supreme Court [*3]providently exercised its discretion in vacating the note of issue and certificate of readiness to permit further discovery."
Mr. Hauser, without completing court-ordered discovery, filed a note of issue and certificate of readiness on January 26, 2006. Plaintiff CYL's counsel then moved to vacate the January 26, 2006 note of issue and certificate of readiness. In my second discovery order in the instant matter, on June 27, 2006 [published at 12 Misc 3d 1173 (A), supra], I vacated the January 26, 2006 note of issue and certificate of readiness, finding that it was premature because discovery was incomplete. Then, I ordered all outstanding discovery to be completed within 90 days after plaintiffs' counsel serves a copy of notice of entry of the decision. Further, I ordered a new note of issue and certificate of readiness to be filed within 120 days after service on defendants of a notice of entry of the order.
Again, BRACH and Mr. Hauser failed to comply with my discovery order. Subsequently, plaintiff CYL, pursuant to CPLR § 3126 (3), moved to strike defendants' counterclaims and dismiss the action with prejudice. I issued my third discovery order, in the instant matter, in a November 17, 2006 short-form order, holding:
Plaintiff's OSC to strike defendants' counterclaims is granted
to the extent that defendant will provide plaintiff with a list of all
witnesses, their addresses and a synopsis of their proposed testimony
by 12/1/06. Plaintiff will then provide defendant with a list of its
witnesses, their addresses, and proposed testimony by 12/15/06. All
EBTS's and discovery to be completed by 2/15/07. Note of issue to
be filed by 3/15/07. Failure of defendants to comply with this schedule
will result in the automatic striking of defendants' counterclaims
pursuant to CPLR § 3126 (3) and dismissal with prejudice.
Discovery demands include production of demanded documents.
Thereafter, plaintiffs served defendants with a demand for discovery and inspection. Defendants never responded to this. Defendants served deposition notices for three of plaintiffs' proposed witnesses beyond the February 15, 2007-deadline.
Plaintiffs then moved for a second time, by order to show cause, to strike defendants' counterclaims, pursuant to CPLR § 3126 (3), and dismissal of the action with prejudice. I issued a fourth discovery order, in a March 2, 2007 short-form order, stating:Plaintiff's OSC to dismiss defendants' counterclaim . . . pursuant to CPLR
3126 (3) is denied. However, defendants' counsel on counterclaim has
informed the Court and opposing counsel that no document or reports of
Nachman Brach, Cipora Katz & Wolf Katz will be used at trial. By 3/9/07,
defendants' counsel must provide plaintiff's counsel with any documents
to be used by Albert Santagata at trial. Any documents not produced
by 3/9/07 by defendants' counsel to plaintiff's counsel is precluded
from use at trial, whether or not previously furnished to plaintiff's
counsel.
In the presence of opposing counsel the Court visited the
Building Dept. web site and printed 5 C. of O's for 535 Bedford
Avenue and one C. of O. for 545 Bedford Avenue. These are the [*4]
Cert. of Occupancy that were issued by the Dept. of Buildings for
the premises. These six documents are attached and part of this
order.
All EBT's must be completed by 5/4/07. Defendants' counsel
must file note of issue by 5/25/07.
Both plaintiffs' and defendant's counsels exchanged letters proposing deposition dates. Mr. Hauser, in his March 26, 2007-letter, stated that he assumed that CYL's counsel didn't wish to depose BRACH again, and in his March 30, 2007-letter he refused to produce BRACH for a deposition "absent a direction from the Court that he is required to appear for a second deposition [the first deposition took place on March 17, 1999]." The exchange of letters ultimately resulted in plaintiffs moving, for a third time, by order to show cause, to dismiss defendants' counterclaims, pursuant to CPLR § 3126 (3), for defendants' failure to comply with a discovery order and to dismiss the action with prejudice.
This order to show cause was heard by me on July 6, 2007. That day, I issued my fifth discovery order in the instant matter, by short-form order, stating:
After oral argument, plaintiff's OSC to strike the counterclaim
of defendants Brach, et. al. for failure of defendant Brach to be deposed,
pursuant to CPLR 3126 (3) is granted to the extent that: Nachman Brach
shall be deposed on Tuesday, 7/10/07, at 11 A.M. at the offices of
Tennenbaum and Berger, LLP, 26 Court St., Brooklyn, NY. If Nachman
Brach fails to appear for his deposition on July 10, 2007 at 11 A.M. the
counterclaims of defendants shall be deemed as dismissed.
On July 9, 2007, Mr. Hauser filed a notice of appeal of my July 6, 2007 decision and order.
Both Mr. Brach and Mr. Hauser appeared for the deposition on July 10, 2007. As noted in my April 1, 2008 decision and order (19 Misc 3d 1111 [A]), supra), at 5, Mr. Hauser made at least forty-four speaking objections at the deposition, and numerous comments that interfered with the questioning of Mr. Brach, in violation of 22 NYCRR § 221.1 (b), "The Uniform Rules for the Conduct of Depositions." The following exchange took place, at p. 33, lines 8 - 25, of the EBT:
MR. COHEN:Mr. Hauser, I will respectfully ask you [to] limit
your comments to objections and that is it.
MR. HAUSER:Counsel, I went to law school just like you. A
federal judge told me a long time ago that when you come to a
deposition defending a witness you shouldn't sit there like a plant.
I have no intention of doing that.
MR. COHEN:You were given bad advice.
MR. HAUSER:What is that?
MR. COHEN:You were given bad advice. I am asking that
you limit your comments to objections and that is it. I am asking
that you not help your client.
After about an hour of questioning at the deposition, Mr. Hauser asked for a break. CYL's counsel consented without argument [EBT transcript, p. 45, lines 12-14]. However, when CYL's [*5]counsel requested a lunch break, Mr. Hauser refused. The following colloquy took place, at p. 89, line 21 - p. 90, line 13, of the EBT:
MR. COHEN:I am going to call for a break.
MR. HAUSER:It is now 20 minutes to 2:00. We are here for
almost two and a half hours, more than that.
MR. COHEN:I need about a half hour.
MR. HAUSER:A half hour? We will see you another day. I
am not prepared to break this deposition for a half hour.
MR. COHEN:If you leave you leave at your own peril. I am
taking a lunch break. It is your decision. You know there is an
Order out. I am asking you not to leave.
(Time noted: 1:40 p.m.)
Mr. Hauser and Mr. Brach did not return to complete the examination before trial.
In my previously cited April 1, 2008 decision and order, at 6-7, I held:
The Court agrees with plaintiffs' counsel that both Mr. Brach and Mr.
Hauser have demonstrated "arrogant disrespect for this court and
flagrant disregard of the judicial process [and it] must be countenanced
no more." The instant order to show cause is the fourth time that
plaintiffs moved, pursuant to CPLR § 3126 (3), to strike defendants'
counterclaims and dismiss the action with prejudice. When I issued
my July 6, 2007 decision and order, it was clear that Mr. Brach's
deposition was to be completed, not broken. Therefore, in the words of plaintiff's counsel, "it is high time for the Court to punish defendants' impunity."
Mr. Hauser, at the May 30, 2008 Part 130 hearing, tried to reargue my previous orders and refute them. He stated at p. 16, lines 6-7, "[m]y position is I didn't violate anything nor did I do anything bad." Further, at p. 26, lines 8-12, Mr. Hauser stated, "[a]ll I want to say, Your Honor, in my own defense is that the - - my action and conduct were taken in the greatest good faith, and in this charge of the responsibility as I see it, and as I saw it to my client."
Meanwhile, Michael Cohen, Esq., of plaintiffs' counsel, Tenenbaum & Berger, LLP, told the Court at p. 3, line 19 - p. 4, line 13:
In my 15 years of practice I have never come across an adversary who
I felt made a mockery of this Court and of our system of jurisprudence.
Made a mockery of my good intention, my hard work, and it is not
without any basis that we are seeking the imposition of costs and
sanctions, if the Court so deems, against Mr. Hauser personally,
. . . I spent more than ten hours preparing for that deposition
[July 10, 2007] so that I could take it as expeditiously as possible.
And I would only ask that in addition to what you recite in your
decision you take into consideration, and our seeking costs and
sanctions against Mr. Hauser.
Further, Mr. Cohen, at p. 22, lines 9-18, stated:
The reason we're seeking the costs is because we were - - our client
was forced to pay $2,500 per motion because Mr. Hauser instead of [*6]
seeking a protective order - - and when you ruled complying with
the order, he chose to act as a judge in this case, a parallel judge, and
say I'm simply going to ignore the judge's order because I think they
are not right. And it is that attitude and behavior in this litigation for
which we are seeking the costs against him. Because it is completely
unnecessary.
Discussion
Chief Judge Kaye, held for a unanimous Court of Appeals, in Kihl v Pfeffer (94 NY2d 118, 123 [1999]), that:
If the credibility of court orders and the integrity of our judicial
system are to be maintained, a litigant cannot ignore court orders
with impunity . . . Finally, we underscore that compliance with
a disclosure order requires both a timely response and one that
evinces a good-faith effort to address the requests meaningfully.
[Emphasis added]
It is clear that defendant BRACH and its counsel, Mr. Hauser, failed to comply with
five of my discovery orders: April 19, 2005; June 27, 2006; November 17, 2006; March 2, 2007;
and, July 6, 2007. In adjourning plaintiffs' order to show cause, that ultimately resulted in my
April 1, 2008 decision, which ordered the instant Part 130 hearing, I issued a short-form order on
October 26, 2007, ordering "defendants to file and serve opposition papers to plaintiffs' OSC by
11/9/07." Instead of addressing whether or not I should dismiss the case, pursuant to CPLR
§ 3126 (3), Mr. Hauser obfuscated the issues in a cross-motion, by attempting to reopen and
relitigate whether Mr. Brach should be deposed at all, and sought to limit the scope and duration
of the EBT. In support of his cross-motion for a protective order, pursuant to CPLR § 3103
(a), Mr. Hauser submitted only his affirmation, rehashing almost eighteen years of litigation,
which was not only irrelevant to the order to show cause, but replete with inadmissible hearsay
and double hearsay. Mr. Hauser called deposing Mr. Brach, in ¶ 27 of his affirmation in
support of his cross-motion, "a mere ploy to further harass and delay the defendants and the trial
of a simple counterclaim to establish a sum of money to be paid." He overlooked that plaintiffs
are entitled to depose Mr. Brach, a party, as a matter of law (CPLR § 3101), and failed to
offer any legitimate excuse for Mr. Brach's five-time failure to comply with my discovery orders.
Further, Mr. Hauser's blatant failure to comply with my five discovery orders can be inferred as willful and contumacious. "Willful" is defined as "voluntary and intentional" (Black's Law Dictionary 1593 [7th ed 1999]) and "contumacious conduct" is defined as "a willful disobedience of a court order" (Black's Law Dictionary 292 [7th ed 1999]). The Appellate Division, Second Department, held in Howe v Jeremiah (51 AD3d 975, 975-976 [2008]), that: The willful or contumacious character of a party's conduct can be
inferred from the party's repeated failure to respond to demands
and/or to comply with discovery orders (see McArthur v New York
City Hous. Auth., 48 AD3d 431 [2008] . . . [T]he willful or contumacious
character of the conduct at issue could be properly inferred by the [*7]
court from . . . repeated failures to comply with the defendant's
discovery demands and the court's discovery orders to provide certain
disclosure without an adequate excuse.
Similarly, the Appellate Division, Second Department, in Novick v De Rosa
(51 AD3d 885 [2008]), held that:
the plaintiff's willful and contumacious conduct can be inferred from
her failure, over an extended period of time, to provide substantive
and complete responses to the defendant's requests for discovery and
inspection, to comply with court orders directing such disclosure, and
the absence of any reasonable excuse for these failures (see Martin v
City of New York, 46 AD3d 635 [2007]; Maiorino v City of New
York, 39 NY AD3d 601 [2007]).
(See Arts4All, Ltd. v Hancock, 54 AD3d 286 [1d Dept 2008]; Ernie Otto Corp. v Inland Southeast
Thompson Monticello, LLC, 53 AD3d 924 [3d Dept 2008]; Mei Yan Zhang v Santana, 52 AD3d
484 [2d Dept 2008]).
Mr. Hauser's willful and contumacious conduct, exhibited by his failure to abide with my five discovery orders, had a dilatory effect on the instant case, and is frivolous conduct. 22 NYCRR § 130-1.1 (a) states:
§ 130-1.1. Costs; sanctions. (a) The 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 as defined in this Part. 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 as defined in this Part, which shall
be payable as provided in section 130-1.3 of this Subpart.
Further, 22 NYCRR § 130-1.1 (b) states that "sanctions may be imposed upon
any attorney appearing in the action or upon a partnership, firm or corporation with which the
attorney is associated."
22 NYCRR § 130-1.1 (c) states that:
For purposes of this part, conduct is 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;
[*8]
(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.
It is clear that Mr. Hauser blatantly violated my April 19, 2005, June 27, 2006, November 17, 2006, March 2, 2007, and July 6, 2007 discovery orders. On July 10, 2007, at Nachman Brach's EBT, Mr. Hauser continued to frustrate the process and prematurely terminated the EBT. Undeniably, plaintiffs' counsel, Tenenbaum & Berger, LLP, incurred expenses in going forward with additional motion practice. Tenenbaum & Berger, LLP, requests that the Court award costs of $2,500.00 each, or $10,000.00, to plaintiffs for reasonable attorney's fees for the time spent in prosecuting four motions or orders to show cause, that resulted in the June 27, 2006, November 17, 2006, March 2, 2007, and July 6, 2007 discovery orders.Discovery would have been completed years ago, and BRACH's counterclaim tried on its merits, if Mr. Hauser had not engaged in his dilatory tactics.
The Court, in Levy v Carol Management Corporation (260 AD2d 27, 33 [1st Dept
1999]), stated that in determining if sanctions are appropriate the Court must look at the broad
pattern of conduct by the offending attorneys or parties. Further, "22 NYCRR
130-1.1 allows us to exercise our discretion to impose costs and sanctions on an
errant party . . ." The Levy Court at 34, held that "[s]anctions are retributive, in that they
punish past conduct. They also are 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 Court, in Kernisan, M.D. v Taylor, (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules "is toprevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10)." [Emphasis added]
"In its discretion, a court may award costs and financial sanctions against an attorney or party resulting from frivolous conduct (see 22 NYCRR130-1.1 [a])." (Flaherty v Stavropoulos, 199 AD2d 301, 302 [2d Dept 1993]). Mr. Hauser's dilatory conduct must be deterred, as noted above, in Kernisan, M.D. v Taylor. (See Fenstermaker v Edgemont Union Free School District, 48 AD3d 564 [2d Dept 2008]; Kamen v Diaz-Kamen, 40 AD3d 937 [2d Dept 2007]; Transaero, Inc. v Biri Associates, Corp., 39 AD3d 738 [2d Dept 2007]; Ofman v Campos, 12 AD3d 581 [2d Dept 2004]).
In Navin v Mosquera (30 AD3d
883 [3d Dept 2006], the Court instructed that when considering if specific conduct is
sanctionable as frivolous, "courts are required to
examine whether or not the conduct was continued when its lack of legal or factual
basis was apparent [or] should have been apparent' (22 NYCRR 130-1.1 [c])." In Sakow ex rel. Columbia Bagel, Inc. v
Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct, New York County 2004]), the Court
held that "[i]n 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 County 1992])." On May 30, 2008, this Court afforded Mr. Hauser a
[*9]hearing, pursuant to 22 NYCRR § 130-1.1, to determine
if Mr. Hauser: "adhered to the standards of a reasonable attorney" or engaged in frivolous
conduct; and, to allow Mr. Hauser a reasonable opportunity to be heard. (See In re Mancuso,
48 AD3d 570 [2d Dept 2008]; Mascia v Maresco, 39 AD3d 504 [2d Dept 2007]; Yan v Klein, 35 AD3d 729 [2d
Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept
2005]; Frankel v Hirsch, 15 AD3d
438 [2d Dept 2005]; Kucker v Kaminsky & Rich, 7 AD3d 39 [2d Dept 2004];
Tyree Bros. Environmental Services, Inc. v Ferguson Propeller Inc., 247 AD2d 376 [2d
Dept 1998]).
It is clear that Mr. Hauser's willful and contumacious conduct is subject to costs and sanctions. He failed to comply with my April 19, 2005 discovery order, but still filed a note of issue and certificate of readiness on January 26, 2006. He failed to comply with my June 27, 2006 discovery order and complete discovery within 90 days. After my November 17, 2006 order, Mr. Hauser failed to respond to plaintiffs' demand for discovery and inspection. I ordered, on March 2, 2007, the production of certain documents by Mr. Hauser and the completion of depositions by May 4, 2007. Then, Mr. Hauser engaged in willful and contumacious conduct by refusing to have Mr. Brach appear for an examination before trial "absent a direction from the Court that he is required to appear [March 30 letter of Mr. Hauser]." Finally, on July 6, 2007, I ordered that BRACH's counterclaim will be dismissed if Mr. Brach "fails to appear for his deposition on July 10, 2007 at 11 A.M." Mr. Brach did appear with Mr. Hauser on that date. Mr. Hauser, at the deposition, delayed the proceedings with at least forty-four speaking objections, and ultimately terminated the deposition at 1:40 P.M., after failing to allow opposing counsel a lunch break. In my April 1, 2008 decision and order (19 Misc 3d 111 (A) supra), at 6-7, I observed:
In ¶ 8 of his affirmation in support of the order to show cause,
plaintiffs' counsel stated that:
defendants' and Mr. Hauser's arrogant disrespect for this court and
flagrant disregard of the judicial process must be countenanced no
more. Clearly, Mr. Brach appeared but refused to complete the
deposition so that he may later claim that he complied with the letter
of the order if not its intent and the Court's oral directive to complete
the deposition. We further submit once again that the refusal to produce
Mr. Brach for a completed deposition is a stall tactic and part of a
long pattern of defendants' flagrant disregard of this Court's prior
discovery orders and schedules which direct, inter alia, for the
depositions of all witnesses, and are a part of defendants' dilatory
tactics to frustrate the progress of discovery and delay the prosecution
of their counterclaims so as to forestall the foreclosure action that is
presently stayed pending a final outcome of this case. We respectfully [*10]
submit that it is high time for the Court to punish defendants' impunity.
The Court agrees with plaintiffs' counsel that both Mr. Brach
and Mr. Hauser have demonstrated "arrogant disrespect for this court and
flagrant disregard of the judicial process [and it] must be countenanced
no more." . . . When I issued my July 6, 2007 decision and order, it was
clear that Mr. Brach's deposition was to be completed, not broken.
Therefore, in the words of plaintiff's counsel, "it is high time for the
Court to punish defendants' impunity."
Thus, the Court finds that Mr. Hauser engaged, willfully and contumaciously, in frivolous
conduct, beneath the standards of a reasonable attorney, and awards costs of $10,000.00 to
plaintiffs for reasonable legal services, rendered by Tenenbaum & Berger, LLP, for the making of
four discovery motions or orders to show cause, subsequent to my April 19, 2005 decision and
order. Further, the Court imposes a sanction of $4,000.00 ($1,000.00 for each discovery order
subsequent to my April 19, 2005 decision and order) upon Mr. Hauser for his frivolous conduct.
Conclusion
Accordingly, it is
ORDERED that, after conducting a hearing on May 30, 2008 to determine if Noel Hauser, Esq., engaged in "frivolous conduct," as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (c), and finding that Noel Hauser, Esq. was granted "a reasonable opportunity to be heard," pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (d), the Court finds that Noel Hauser, Esq. engaged in "frivolous conduct," as defined in 22 NYCRR § 130-1.1, in the instant matter; and it is further
ORDERED that Noel Hauser, Esq., pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.2, shall pay costs of $10,000.00 to plaintiffs' counsel, Tenenbaum & Berger, LLP, 26 Court Street, Penthouse, Brooklyn, New York 11242, for reimbursement of plaintiffs' reasonable attorney's fees in making four discovery motions or orders to show cause subsequent to the Court's decision and order of April 19, 2005 in the instant matter, within thirty (30) days after service of notice of entry of this decision and order; and it is further
ORDERED that Noel Hauser, Esq., pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.3, shall pay a sanction of $4,000.00 to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210, within thirty (30) days after service of notice of entry of this decision and order.
This constitutes the Decision and Order of the Court.
ENTER
___________________________
HON. ARTHUR M. SCHACKJ. S. C.
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