Matter of C.F-P. (E.L.P.)
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[*1]
Matter of C.F-P. (E.L.P.)
2015 NY Slip Op 51338(U)
Decided on August 21, 2015
Supreme Court, Bronx County
Hunter Jr., 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2015
Supreme Court, Bronx County
In the Matter of the Application of C.F-P., Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of
against
E.L.P. a/k/a E.P., A Person Alleged To Be Incapacitated.
9XXXX/11
Petitioner:
Bradley M. Zelenitz, Esq.
Zelenitz, Shapiro & D'agostino, LLP
138-44 Queens Boulevard
Briarwood, NY 11435
Respondent:
Sandra M. Prowley, Esq.
Law Office of Sandra M. Prowley & Associates LLC
1037 East 213th Street
Bronx, NY 10469
Alexander W. Hunter Jr., J.
By decision and order dated October 16, 2013, this court determined Ms. P's fees for commencing the underlying guardianship matter to be $6,000.00 in total, with no further compensation and noted that Ms. P had already been paid in full pursuant to a retainer agreement. In the same order, this court directed Ms. P to make no further applications for attorney's fees. However, in complete and deliberate violation of this court's order, the petitioner and Ms. P participated in fee dispute arbitration through the New York State Fee Dispute Resolution Program on February 26, 2014 which was somehow mistakenly filed by the petitioner.
In a decision and order dated December 11, 2014, this court ordered a hearing in order to [*2]afford Ms. P a reasonable opportunity to be heard on whether she should be sanctioned as a result of her abject disregard and disingenuous statements and actions which were unbecoming a member of the bar. The sanctions hearing, held pursuant to Part 130 of the Rules of the Chief Administrator of the Courts, took place on July 9, 2015.
At the hearing, Ms. P, testified that she did not initiate the February 26, 2014 arbitration that resulted in an award of $9,540.00 in her favor. Ms. P explained that, although the petitioner showed the arbitrator this court's October 16, 2013 order, he nonetheless proceeded with the arbitration. A copy of a document entitled Client Request for Fee Arbitration, bearing the signature "C.F-P.," was offered into evidence by Ms. P in support of her contention that she did not initiate the arbitration, nor intend to defy this court's prior order. Throughout the hearing Ms. P vehemently denied the petitioner's allegations regarding the amount of legal fees that petitioner paid her.
The petitioner testified that she attended the arbitration proceeding pro se and that the signature on the arbitration request appeared to be her own, although she did not remember filing said request. She further testified that shortly after paying Ms. P a $6,000.00 retainer fee, plus $650.00 in court costs, she paid her an additional $3,000.00, and then sometime later paid her another $9,000.00. The petitioner asserted that she was harassed and bullied into paying Ms. P a total of $18,000.00. To help prove her point, the petitioner stated that Ms. P contacted her on a daily basis for additional cash payments. Petitioner testified that Ms. P attempted to strong-arm her into paying additional fees and went so far as to drive petitioner to three separate banks to withdraw funds. Due to Ms. P's erratic behavior at each location, employees at the banks refused to provide her with any information and ejected her from their premises.
At the hearing, current counsel for the petitioner argued that his client is 83 years of age and that her recollection with regard to filing the arbitration request is poor. However, the fact remains that the arbitration occurred despite this court final order. Petitioner's counsel reasoned that Ms. P, as an officer of the court, did not inform the arbitrator of this court's final and binding determination with respect to the legal fees in an effort to circumvent this court's authority and collect additional fees.
22 NYCRR 130—1.1 allows the court discretion to award costs, including reasonable attorney's fees, and to impose sanctions against a party or an attorney who engages in "frivolous conduct." Conduct is frivolous if "(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another ." 22 NYCRR § 130—1.1(c)(2). "In determining whether the conduct undertaken was frivolous, the court shall consider among other issues the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." 22 NYCRR § 130—1.1(c)(3). In Levy v. Carol Management Corporation, 260 AD2d 27, 33 (1st Dept. 1999), the Appellate Division, First Department 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 [b]ar at large."
The New York State Fee Dispute Resolution Program is governed by Part 137 of the Rules of the Chief Administrator of the Courts. Attorney-client fee disputes are specifically exempt from the program "where the fee has been determined pursuant to court order." 22 NYCRR § 137.1(b)(5). "If the origin of the fee is a court's allowance of it Rule 137 would seem to be inapplicable and the appellate process would appear to be the proper path of review." 119 Siegel's Prac. Rev. 1. Thus, Ms. P's act of blatantly disregarding this court's final order was without merit in law, only served to prolong the fee dispute, and was undertaken primarily to generate additional legal fees from the petitioner. It is clear that Ms. P's willful and contumacious conduct is subject to sanctions.
Upon the foregoing reasons, this court sanctions Ms. P $2,500.00.
Accordingly, petitioner's motion by order to show cause for an order sanctioning Ms. P, Esq. is granted; and it is hereby
ORDERED that Ms. P, Esq., is sanctioned in the amount of $2,500.00 to be paid to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210; and it is further
ORDERED that written proof of the payment of this sanction shall be provided to this court and opposing counsel within thirty (30) days after service of a copy of this order with notice of entry; and it is further
ORDERED that in accordance with 22 NYCRR 130-1.3, a copy of this order will be sent by this court to the Lawyer's Fund for Client Protection; and it is further
ORDERED that attorney's fees in the amount of $5,893.20 and the costs and disbursement associated with this proceeding are awarded to counsel for petitioner; and it is further
ORDERED that payment of these fees, costs and disbursement without interest shall be made to opposing counsel within thirty (30) days after service of a copy of this order with notice of entry.
Movant is directed to serve a copy of this order with notice of entry upon all parties within thirty (30) days of entry and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.
Dated:August 21, 2015ENTER:
Decided on August 21, 2015
Supreme Court, Bronx County
In the Matter of the Application of C.F-P., Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of
against
E.L.P. a/k/a E.P., A Person Alleged To Be Incapacitated.
9XXXX/11
Petitioner:
Bradley M. Zelenitz, Esq.
Zelenitz, Shapiro & D'agostino, LLP
138-44 Queens Boulevard
Briarwood, NY 11435
Respondent:
Sandra M. Prowley, Esq.
Law Office of Sandra M. Prowley & Associates LLC
1037 East 213th Street
Bronx, NY 10469
Alexander W. Hunter Jr., J.
The motion by order to show cause by petitioner C.F-P. for an order sanctioning former counsel for the petitioner Ms. P, Esq. is granted.
By decision and order dated October 16, 2013, this court determined Ms. P's fees for commencing the underlying guardianship matter to be $6,000.00 in total, with no further compensation and noted that Ms. P had already been paid in full pursuant to a retainer agreement. In the same order, this court directed Ms. P to make no further applications for attorney's fees. However, in complete and deliberate violation of this court's order, the petitioner and Ms. P participated in fee dispute arbitration through the New York State Fee Dispute Resolution Program on February 26, 2014 which was somehow mistakenly filed by the petitioner.
In a decision and order dated December 11, 2014, this court ordered a hearing in order to [*2]afford Ms. P a reasonable opportunity to be heard on whether she should be sanctioned as a result of her abject disregard and disingenuous statements and actions which were unbecoming a member of the bar. The sanctions hearing, held pursuant to Part 130 of the Rules of the Chief Administrator of the Courts, took place on July 9, 2015.
At the hearing, Ms. P, testified that she did not initiate the February 26, 2014 arbitration that resulted in an award of $9,540.00 in her favor. Ms. P explained that, although the petitioner showed the arbitrator this court's October 16, 2013 order, he nonetheless proceeded with the arbitration. A copy of a document entitled Client Request for Fee Arbitration, bearing the signature "C.F-P.," was offered into evidence by Ms. P in support of her contention that she did not initiate the arbitration, nor intend to defy this court's prior order. Throughout the hearing Ms. P vehemently denied the petitioner's allegations regarding the amount of legal fees that petitioner paid her.
The petitioner testified that she attended the arbitration proceeding pro se and that the signature on the arbitration request appeared to be her own, although she did not remember filing said request. She further testified that shortly after paying Ms. P a $6,000.00 retainer fee, plus $650.00 in court costs, she paid her an additional $3,000.00, and then sometime later paid her another $9,000.00. The petitioner asserted that she was harassed and bullied into paying Ms. P a total of $18,000.00. To help prove her point, the petitioner stated that Ms. P contacted her on a daily basis for additional cash payments. Petitioner testified that Ms. P attempted to strong-arm her into paying additional fees and went so far as to drive petitioner to three separate banks to withdraw funds. Due to Ms. P's erratic behavior at each location, employees at the banks refused to provide her with any information and ejected her from their premises.
At the hearing, current counsel for the petitioner argued that his client is 83 years of age and that her recollection with regard to filing the arbitration request is poor. However, the fact remains that the arbitration occurred despite this court final order. Petitioner's counsel reasoned that Ms. P, as an officer of the court, did not inform the arbitrator of this court's final and binding determination with respect to the legal fees in an effort to circumvent this court's authority and collect additional fees.
22 NYCRR 130—1.1 allows the court discretion to award costs, including reasonable attorney's fees, and to impose sanctions against a party or an attorney who engages in "frivolous conduct." Conduct is frivolous if "(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another ." 22 NYCRR § 130—1.1(c)(2). "In determining whether the conduct undertaken was frivolous, the court shall consider among other issues the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." 22 NYCRR § 130—1.1(c)(3). In Levy v. Carol Management Corporation, 260 AD2d 27, 33 (1st Dept. 1999), the Appellate Division, First Department 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 [b]ar at large."
The New York State Fee Dispute Resolution Program is governed by Part 137 of the Rules of the Chief Administrator of the Courts. Attorney-client fee disputes are specifically exempt from the program "where the fee has been determined pursuant to court order." 22 NYCRR § 137.1(b)(5). "If the origin of the fee is a court's allowance of it Rule 137 would seem to be inapplicable and the appellate process would appear to be the proper path of review." 119 Siegel's Prac. Rev. 1. Thus, Ms. P's act of blatantly disregarding this court's final order was without merit in law, only served to prolong the fee dispute, and was undertaken primarily to generate additional legal fees from the petitioner. It is clear that Ms. P's willful and contumacious conduct is subject to sanctions.
Upon the foregoing reasons, this court sanctions Ms. P $2,500.00.
Accordingly, petitioner's motion by order to show cause for an order sanctioning Ms. P, Esq. is granted; and it is hereby
ORDERED that Ms. P, Esq., is sanctioned in the amount of $2,500.00 to be paid to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210; and it is further
ORDERED that written proof of the payment of this sanction shall be provided to this court and opposing counsel within thirty (30) days after service of a copy of this order with notice of entry; and it is further
ORDERED that in accordance with 22 NYCRR 130-1.3, a copy of this order will be sent by this court to the Lawyer's Fund for Client Protection; and it is further
ORDERED that attorney's fees in the amount of $5,893.20 and the costs and disbursement associated with this proceeding are awarded to counsel for petitioner; and it is further
ORDERED that payment of these fees, costs and disbursement without interest shall be made to opposing counsel within thirty (30) days after service of a copy of this order with notice of entry.
Movant is directed to serve a copy of this order with notice of entry upon all parties within thirty (30) days of entry and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.
Dated:August 21, 2015ENTER:
__________________________
J.S.C.
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