Matter of Franz

[*1] Matter of Franz 2009 NY Slip Op 50487(U) [22 Misc 3d 1137(A)] Decided on February 2, 2009 Sur Ct, Cattaraugus County Himelein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2009
Sur Ct, Cattaraugus County

In the Matter of the Estate of David M. Franz, Deceased



32298



GERALD J. VELLA, ESQ.

378 East Main Street

Springville, New York 14141

For the Estate

RAYMOND KOT, II, ESQ.

1400 Statler Towers

Buffalo, New York 14202

For the Claimant

Larry M. Himelein, J.

Order for Sanctions and Costs

Decedent David Franz died on December 21, 2005. On May 24, 2006, his will was admitted to probate and his daughter, Amy McKeown, was appointed executor. Sue Franz, decedent's ex-wife, filed several claims against the estate, all of which the executor rejected. The executor then sought to remove Sue Franz from the marital residence so it could be sold. The court granted the application but the order was stayed. The stay has expired but Sue Franz apparently remains in the residence. The court has been advised that there is an executed contract for the sale of the house.

A trial was held on Sue Franz's claims against the estate, based on a 2002 matrimonial agreement and a 2005 order from Supreme Court (Curran, J). On October 28, 2008, Ms. Franz was awarded $21,427.32 on her claims and her attorneys were awarded $2,000 that Judge Curran had previously ordered but had not yet been paid. Sue Franz was also ordered to vacate the marital residence by November 29, 2008.

On January 29, 2009, Raymond P. Kot, II, the attorney for Sue Franz, filed a motion to [*2]hold Gerald Vella, the attorney for the David Franz estate, in contempt. Mr. Kot also sought $1,560 in attorney's fees from Mr. Vella. The claim was that Mr. Vella should not be allowed to represent the estate in the sale of the marital residence because the 2002 matrimonial agreement had stipulated that attorney Raymond Bulson, who represented David Franz in the divorce, would be the attorney to handle the sale.

However, neither party abided by the 2002 matrimonial agreement which is why the October 2008 trial was held. Sue Franz, who was supposed to vacate the premises within ten days, is still there more than six years later. On January 19, 2009, Mr. Vella wrote Mr. Kot, discussing the proposed sale of the marital residence. Mr. Vella acknowledged that Sue Franz wanted Raymond Bulson to handle the closing. He indicated that Sue Franz was welcome to hire anyone she wanted to handle her "part" of the closing but the executor had retained Mr. Vella to represent the estate. Mr. Kot's response was to file the instant motion to hold Mr. Vella in contempt and require Mr. Vella to pay Mr. Kot attorney's fees of $1,560.

The rules relating to costs and sanctions are found in Part 130 of the Rules of the Chief Administrator. Attorney conduct is frivolous, and thus sanctionable, if it is completely without legal or factual merit; is done to delay or prolong litigation or harass or maliciously injure; or asserts material false statements (§ 130.1.1 [c] [1] [2] [3]). A frivolous motion for costs and sanctions is itself frivolous (Id.).

The motion to find attorney Vella in contempt is, in this court's opinion, frivolous in the extreme. Ms. Franz did not comply with the agreement by moving out within 10 days and it is inconsistent for her to violate the agreement and try to hold the estate to the same agreement. Further, Mr. Vella was hired by the executor to represent the estate; it is not Mr. Kot's call to dictate what lawyer the estate must hire. This court has repeatedly held throughout this case that such decisions are the executor's to make. The relevancy of a 2002 matrimonial agreement to an estate proceeding more than six years later is non-existent. Finally, Mr. Vella had nothing to do with the 2002 matrimonial agreement; he was not part of it; he did not represent either party to it; he was hired to handle the estate several years after the matrimonial agreement was made.

There is no merit to Mr. Kot's motion; no reasonable argument can be made in support of the motion; and the court believes this was done to delay this proceeding, much as Sue Franz has delayed leaving the residence for years, and to harass the attorney for the estate (see Pickens v. Castro, 55 AD3d 443, 867 NYS2d 47 [1st Dept 2008]; Wesche v. Wesche, 51 AD3d 909, 859 NYS2d 231 [2d Dept 2008]; Fenstermaker v. Edgemont Union Free School Dist., 48 AD3d 564, 856 NYS2d 115 [2d Dept 2008]; Constantini v. Constantini, 44 AD3d 509, 843 NYS2d 328 [1st Dept 2007]; Makan Land Dev. v. Prokopov, 42 AD3d 439, 839 NYS2d 787 [2d Dept 2007]; Kamen v. Diaz-Kamen, 40 AD3d 937, 837 NYS2d 666 [2d Dept 2007]).

This court respects any attorney's appropriate efforts on behalf of a client. I was once a litigator and lawsuits can be difficult. However, I do not understand or sympathize with a lawyer wrongfully accusing another lawyer of unethical conduct in order to obtain an advantage in a lawsuit and have consistently sanctioned lawyers who have done so (see In re Sommer, 16 Misc 2d 1103 [A], 841 NYS2d 828 [NY Sur 2007]; Dwaileebe v. Six Flags Darien Lake, 11 Misc 3d 958, 810 NYS2d 326 [NY Sup 2006]).

Accordingly, upon reading the notice of motion dated January 23, 2009, the affirmation of Raymond P. Kot, II, dated January 23, 2009, and the affirmation of Sue Franz, sworn to on [*3]January 9, 2009, all in support of Mr. Kot's motion, and the affidavit of Gerald Vella, sworn to on January 30, 2009, opposing Mr. Kot's motion and also seeking sanction and attorney's fees, and after hearing both counsel on February 2, 2009, it is hereby

ORDERED, that Mr. Kot's motion for sanctions and all other relief is denied, and it is further

ORDERED, that statutory motion costs of $100 (CPLR 8202) are awarded to the estate, and it is further

ORDERED, that costs of $1,000, representing Mr. Vella's attorney's fees for defending this frivolous motion, are awarded to Mr. Vella, to be paid from the closing proceeds of the sale of the house, unless otherwise paid sooner, the court noting that this fee represents less than two-thirds the fee requested by Mr. Kot in his contempt motion, and it is further

ORDERED, that Mr. Kot is sanctioned $250 for engaging in frivolous conduct, said amount being rather nominal, in the hopes that Mr. Kot, who is young, will learn a lesson from this, and it is further

ORDERED, that entry of this order will be stayed for twenty days within which time Mr. Kot may request a further hearing on the sanction (see Kamen v. Kiaz-Kamen, 40 AD3d 937, 837 NYS2d 666 [2d Dept 2007] [holding that sanctioned attorney is entitled to a reasonable opportunity to be heard]).

E N T E R

_________________________

HON. LARRY M. HIMELEIN