Grasso v Grasso

[*1] Grasso v Grasso 2009 NY Slip Op 52675(U) [26 Misc 3d 1206(A)] Decided on December 2, 2009 Supreme Court, Nassau County DeStefano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2009
Supreme Court, Nassau County

Robert D. Grasso, Plaintiff,

against

Donna A. Grasso, Defendant.



200245-00

Vito M. DeStefano, J.

In this action for divorce and ancillary relief, JHO Freidenberg rendered judgment on May 10, 2005, after a nonjury trial. The Plaintiff former husband ("former husband") appealed from the judgment, which was modified and remitted by the Appellate Division, Second Judicial Department, for a hearing to determine the amount of marital debt, including accrued interest as of the date of commencement of the action.

On March 5, 18 and 19, 2009, this court conducted the hearing, after which it rendered a decision and order (one paper) dated June 13, 2009, which determined the amount of marital debt. Thereafter, on August 4, 2009, the Defendant former wife ("former wife") moved for "reargument of the order of June 13, 2009 and upon reargument modifying the amount marital debt to be repaid by Defendant to Plaintiff by $7500", and sanctions against the former husband and his attorney pursuant to Part 130 of the Rules of the Chief Administrator of the Courts.

In a decision and order (one paper) dated September 15, 2009, the court noted that branch "1" of the former wife's motion was mistakenly denominated as one for reargument, inasmuch as the decision and order from which relief was sought was rendered not upon motion but after a hearing, upon remittitur by the Appellate Division. The court, nevertheless, elected to treat the motion as one seeking to set aside the court's decision pursuant to CPLR 4404(b) and denied [*2]branch "1" on the merits.[FN1] In addition, the court denied the second branch of the motion on the grounds that it was untimely and that it otherwise insufficiently alleged or supported the imposition of sanctions.

The former husband now moves pursuant to 22 NYCRR 130-1.1, for, in effect, costs and attorneys' fees incurred in defending against the former wife's motion for "reargument",[FN2] etc., and "for an order pursuant to Judiciary Law § 487 as to Jeffrey Levitt" [the former wife's attorney].

It is hereby ordered that the motion is in all respects denied.

Regarding the branch [FN3] of the former husband's motion seeking some unspecified form of relief under Judiciary Law § 487, the court notes that relief pursuant to that section, under the circumstances presented here, can only be obtained through plenary action (see generally Amalfitano v Rosenberg, 12 NY3d 8 [2009]; compare Cramer v. Sabo, 31 AD3d 998 [3d Dept 2006]). In this regard, Judiciary Law § 487 criminalizes certain misconduct committed by attorneys and creates a right of action against attorneys personally, separate and apart from any common law claims that can be asserted by an aggrieved party, giving rise to "treble damages to be recovered in a civil action" (see Amalfitano, supra). To accept an interpretation of the statute which would allow a party in pending litigation to seek damages against an attorney in the absence of formal pleadings is wholly untenable, illogical and probably unconstitutional. This, of course, is to be distinguished from the imposition of costs and sanctions pursuant to Part 130 of the New York Code of Rules and Regulations, which requires only "a reasonable opportunity to be heard" (22 NYCRR 130-1.1(d)).

To the extent that allegations of misconduct have been leveled against an attorney, the court notes its familiarity with and obligation under 22 NYCRR 100.3 (D)(2), which requires judges receiving "information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility" to "take appropriate action". Having reviewed the parties' submissions, and in consideration of the multiple conferences and appearances of the attorneys in this case, it is the opinion of the court that the allegations of misconduct raised in the papers do not trigger an obligation to "take appropriate action". However, in light of the failure of both attorneys to cite applicable law and to adhere to this Part's [*3]rules concerning motion practice, the court reminds them of their obligations to obey Part rules as well as the Rules of Professional Conduct, at all times.[FN4]

Regarding the former husband's request for "sanctions", that request is denied in consideration of the parties' submissions, almost ten years of litigation in multiple courts, and as a matter of discretion (22 NYCRR 130-1.1 (a), (b), (c)).

This constitutes the decision and order of the court.

Dated: December 2, 2009

___________________________

Hon. Vito M. DeStefano, J.S.C. Footnotes

Footnote 1:The former wife's attorney concedes that the motion was made under the wrong statutory section (CPLR 2221) and correctly notes that the mistake was not noticed or addressed by the former husband's attorney.

Footnote 2:The former husband's motion purports to seek "sanctions", however, 22 NYCRR 130-1.1 distinguishes between sanctions, which are payable to the Lawyers' Fund for Client Protection, and "costs" and attorneys' fees, which are payable to a party or attorney.

Footnote 3:The court must add that its Part rules require movants to separately denominate by letter or number all items of relief requested. In the instant motion for "sanctions", etc., the former husband has failed to comply with the court's rules by failing to separately and properly denominate the relief requested in the motion.

Footnote 4:In any event, even assuming that the former wife's attorney committed a substantial violation of attorneys' ethics rules, under the circumstances, the court determines that the admonishment given herein constitutes "appropriate action".