Muhametaj v Town of Orangetown

[*1] Muhametaj v Town of Orangetown 2019 NY Slip Op 29358 Decided on November 20, 2019 Supreme Court, Rockland County Marx, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 20, 2019
Supreme Court, Rockland County

Sami Muhametaj and Sami Construction, Plaintiffs,

against

Town of Orangetown, Defendant.



033000/2018



Dwight D. Joyce, Esq.

Attorney for Plaintiff

2 Joyce Plaza

Stony Point, NY 10980

William J. McPartland, Esq.

Steven Saal, Esq.

Marshall Dennehey Warner Coleman & Goggin

(former) Attorneys for Defendant

800 Westchester Avenue, Suite C-700

Rye Brook, NY 10573
Paul I. Marx, J.

This Sanctions Order supplements and amends the record of the Court's directives issued at a conference on November 1, 2019. More specifically, this Order sets forth the sanctions and penalties levied against defendant and defense counsel based on a myriad of discovery abuses and several false statements made by defense counsel in open court on the record and by Town of Orangetown ("Town") officials in sworn affidavits submitted by those officials. The Court hereby finds the conduct of defense counsel and defendant to have been frivolous conduct as defined by Court Rule §130-1.1(c)(2) and (3). This Order shall serve to comply with the Court Rule §130-1.2 requirement that a written order be issued when sanctions are imposed.

Background:

The factual genesis of this action is set forth in the Court's Decision and Order dated December 17, 2018 ("the Decision and Order") and will not be repeated here.

Succinctly stated, plaintiff's remaining causes of action seek: (1) a declaratory judgment to the effect that his property lies within an R-15 zone as depicted on four officially filed zoning [*2]maps and not an R-40 zone as designated in a 1991 Town ordinance, (2) a determination that the Town is estopped from denying that plaintiff's property lies within an R-15 zone, and (3) damages pursuant to 42 USC §1983 for violating the protections afforded to him under the Equal Protection Clause of the Fourteenth Amendment.

The Court has been endeavoring to coax and cajole the parties towards completion of discovery only to be thwarted by the repeated failure of the defendant and its counsel to provide full and complete discovery and their egregious conduct in doing so.

The Court's Preliminary Efforts to Complete Discovery

Following the Decision and Order, this matter was scheduled for a status conference on January 26, 2019.[FN1] At that time, the Court directed the parties to: (1) exchange paper demands no later than February 20, 2019, (2) respond to any such demands no later than March 19, 2019, and (3) complete examinations before trial by May 15, 2019. In addition to this customary discovery, plaintiff's counsel requested that the Court direct the defendant to provide him with all text and email communications between and among the Town Board members and the Town Attorney Robert Magrino, Esq. pertaining to the subject application for certain dates in April 2018.[FN2] Defense counsel resisted production of these items, citing attorney client privilege. Consequently, the Court directed the texts and emails to be produced for in camera inspection no later than March 19, 2019. A compliance conference was scheduled for May 23, 2019.

By letter dated April 8, 2019, plaintiff's counsel wrote to the Court to request a discovery conference since the defendant had not complied with the Court's earlier directive to respond to the plaintiff's discovery demands.[FN3] In response, the Court scheduled a conference for April 12, 2019 to address the Town's failure to provide discovery.

By letter dated April 9, 2019, the Town's defense attorney, William J. McPartland, Esq. of Marshall Dennehey Warner Coleman & Goggin, submitted 3 pages of text messages for in camera review. These were messages exchanged between and among Mr. Magrino, Town Supervisor Chris Day and Town Councilman Thomas Diviny, Esq. Mr. McPartland represented that there were no emails between and among the decision makers for the dates requested.

On April 12, 2019, counsel appeared before the Court for the conference. After discussion concerning the status of discovery, the Court directed: (1) plaintiff's counsel to send a deficiency letter to defense counsel no later than April 24, 2019 outlining the discovery which had not been provided, (2) defense counsel to respond to the deficiency letter no later than May 17, 2019, and (3) examinations before trial to be held no later than July 8, 2019. The Court also ruled that the text messages provided by defense counsel were not discoverable. A compliance [*3]conference was set for July 12, 2019.

On July 12, 2019, counsel again appeared before the Court. At that time, the Court was advised that examinations before trial had not been completed as directed. Once again, the Court extended the time to complete examinations before trial, this time to July 31, 2019 for plaintiff and to October 31, 2019 for defendant. A third compliance conference was set for November 1, 2019.

On September 23, 2019, plaintiff's counsel again wrote to the Court requesting intervention into the latest discovery dispute, this time the failure of the defense to produce emails as previously directed and, apparently, as agreed to by defense counsel in a telephone conversation. In addition, plaintiff's counsel advised that the defense was resisting producing various individuals, including the Town Board members, for examination before trial. Significantly, plaintiff's counsel noted that Mr. McPartland's letter of April 9, 2019, transmitting the text messages to the Court for in camera review, represented that there were no email communications between any voting Board member and the Town Attorney Magrino for the dates surrounding the public hearing in April 2018. The privilege log supplied by Mr. McPartland with the text messages belied that assertion.

In response to plaintiff's counsel's letter, the Court directed all counsel to appear for yet another conference on October 3, 2019.[FN4]

The October 4, 2019 Conference

On October 4, 2019, counsel appeared before the Court. Dwight Joyce, Esq., appeared for plaintiff. Steven Saal, Esq., also of Marshall Dennehey Warner Coleman & Goggin, appeared for defendant. During the appearance, the following exchange took place:

THE COURT: So, you're here because Mr. Joyce has complained, Mr. Saal, that you haven't provided him all the discovery that the Court directed, that would include texts and e-mails between the town attorney and town board members concerning the application, right?MR. SAAL: Well, your Honor, we have provided everything to plaintiffs' counsel. Regarding the text messages, I believe we can settle that one initially, a few conferences ago, I believe Ms. Meyers from my office had appeared, it was earlier this year, your Honor precluded the text messages as attorney-client privilege (Emphasis added).Plaintiffs' counsel has all of the e-mails that he has requested.

Mr. Saal continued ,

MR. SAAL: The production that I just gave to Mr. Joyce now includes an affidavit from the Town that there is [sic] no further e-mails. He has everything. We've produced this all months and months and months ago. It is our position there is no reason the depositions that were going to be scheduled for the end of September that were adjourned by Mr. Joyce for this issue should not have gone forward (Emphasis added).

On this issue, Mr. Saal concluded,

MR. SAAL: It's our position that we've complied with every outstanding paper discovery demand, and that was before the additional courtesy response that I just provided to Mr. Joyce today (Emphasis added).

Following additional discussion, it was revealed to the Court that emails which were not [*4]previously provided to the Court for in camera inspection existed. In that regard, Mr. Joyce stated:

MR. JOYCE: Your Honor, yesterday about 3 o'clock I received 68 pages from the defendants outlining some e-mails which I already had, an affidavit from the IT person where he provides there are no other e-mails. The biggest problem I had, your Honor, which I had spoken to Mr. McPartland about, was that the affidavits where they say they have no communication, they limit them to three days in April of 2018, and I'm saying I'm not limiting my request to text messages to those three days. I want any text message and e-mail, and I got some of those last night, but I got no text [sic] (Emphasis added).

When the Court inquired whether the emails had already been reviewed in camera, Mr. Saal replied in the affirmative. In fact, no emails had been provided to the Court for review. Only text messages were submitted by Mr. McPartland with his letter of April 9, 2019.

Mr. Joyce, on the other hand, advised that the defendant had only recently provided 20 pages of emails.

In response, Mr. Saal stated:

MR. SAAL: There were e-mails, there were e-mails that were under a privilege log. The e-mails, from our perspective, your Honor, are the same sum and substance of the topics that were discovered in the text messages (Emphasis added).

The Court, believing that emails had previously been supplied, again inquired whether these emails were the same emails as had already been provided.

Mr. Saal repeated that the emails were "the same sum and substance of the topics that were discovered in the text messages" (Emphasis added).

The Court inquired:

THE COURT: No, I'm sorry, are they the same e-mails?MR. SAAL: No, these are —THE COURT: So they're different, so they should have been produced to me.

After further colloquoy, the Court continued:

THE COURT: Mr. Saal, I want to see them. I'm going to conduct an in camera inspection of them and I will make a determination as to whether they're discoverable. I'm not going to look at them now, but I'll look at them sometime later.

After discussion concerning the Town's refusal to produce all decision makers for examination before trial, the Court directed those depositions to be completed by October 31, 2019. A conference was scheduled for November 1, 2019.

By Court Notice posted on NYSCEF on October 7, 2019, the Court advised the parties of the results of the in camera inspection of the emails and directed defendant to provide plaintiff with numerous emails to which the Court held the privilege did not apply.

Defendant's October 30, 2019 Correspondence

By letter dated October 30, 2019, sent via email at 3:53 p.m., Mr. McPartland wrote to the Court in anticipation of the scheduled November 1, 2019 conference to advise that he had "discovered" additional emails which had not previously been produced. This, despite Mr. Saal's repeated clear and unequivocal statement that all emails had been provided and the affidavits of Town Board members and the Town's IT specialist to the same effect. Mr. McPartland advised that "a representative from the Town Attorney's Office will be at the conference to explain this issue." Mr. McPartland continued, "The emails have been produced to counsel today" (Emphasis added). Mr. McPartland informed the Court that this "discovery" had taken place after Mr. Joyce [*5]had already deposed 6 witnesses for the Town and on the eve of three additional witnesses being submitted for deposition. Finally, Mr. McPartland requested an additional 30 days in which to complete discovery.

Given Mr. McPartland's statement that there were additional relevant emails that had not been provided to plaintiff's counsel, Mr. Saal's representations and the Town officials' affidavits that all such emails had been disclosed were clearly false.

Plaintiff's Response to Defendant's October 30, 2019 Correspondence

Via email at 8:33 a.m. on October 31, 2019, Mr. Joyce responded to Mr. McPartland's letter by sending a letter dated October 30, 2019., complaining of a litany of discovery abuses, including concealing emails, delaying providing the addresses of former employees, abandoning a Town witness on the eve of her examination before trial and directing her to secure her own counsel, and destroying emails. Perhaps most importantly, Mr. Joyce complained that Mr. McPartland's statement to the Court that he had produced the allegedly newly discovered emails was untrue.

First, Mr. Joyce discussed the defendant's evolving position concerning the existence of emails referable to the subject property and plaintiff, noting that the defense initially claimed that there were no emails, later admitting that there were "some", and "confirming" that all relevant emails had been identified and turned over in affidavits submitted by the Town's IT Department's Computer Network Specialist, Mathew Lenihan, and by every Town Board member.

Mr. Joyce informed the Court that the affidavits submitted by the Town Board and other employees stated:

After a thorough search there are no additional emails in possession of the Town other than what has been provided to our attorney's [sic] in relation to this matter.

Mr. Joyce stated that based on this representation, he proceeded with the examinations before trial. He complained that: the repeated representations made to Plaintiff and to the Court were false. Plaintiff was led to proceed with depositions without the discovery required to properly prepare and proceed and Plaintiff has no confidence that additional emails and electronic evidence do not exist.

Mr. Joyce noted that the defense had offered no explanation for "stonewalling and delaying discovery compliance."

Significantly, Mr. Joyce wrote:

Mr. McPartland's letter to the Court dated October 30, 2019, unequivocally states that the emails at issue were produced to me today. This is patently untrue. As of the writing of this letter at 10:48 p.m., I have not received copies of these emails. I have not even received any information as to who the emails were from, who they were to, what the subject of the emails was, or even how many additional emails there are (Emphasis added).

Mr. Joyce requested the Court to strike the defendant's answer for its various abuses, asserting that "defendant's culpability and resulting prejudice to Plaintiff is extreme and must not be tolerated."

Mr. Joyce advised the Court further that defendant had only recently provided contact information for two witnesses who were no longer employed by the Town, despite a proper demand for their last known addresses having been made in February 2019 and having been [*6]ordered by the Court to be supplied.

Next, Mr. Joyce complained that "just last week, a significant witness-employee of the Defendant was told to retain her own counsel. Again, eight months after being noticed for a deposition." He explained that Jane Slavin, RA, the Director of the Town's Building, Zoning, Planning, Administration and Enforcement Department, whose deposition was supposed to be completed by October 31, 2019, had been informed by the Town that she needed to secure her own representation just a week or so before the scheduled deposition.

Mr. Joyce requested the Court to impose sanctions based on the defendant's alleged spoliation of evidence. In this regard, he advised that Town Board member and attorney, Mr. Diviny testified at his examination before trial that although he was aware that a request to preserve all emails relevant to plaintiff's application had been made, he nonetheless may have deleted several pertinent emails without having produced them.

Mr. Joyce also informed the Court that defendant had not provided a copy of the videotape of the Town Planning Board session at which plaintiff's application had been considered. He asserted that the video was available on the Town's website for a period of time but was later removed from the website.

Mr. Joyce continued that the defense had repeatedly delayed the conduct of examinations before trial which were initially ordered by the Court to be completed by May 15, 2019. He complained that the defendant's delay resulted in the date for completion of examinations before trial being extended to July 8, 2019, then to October 4, 2019, and again to October 31, 2019. He bemoaned the fact that Mr. Magrino had, apparently, stated that he would not submit to examination before trial and requested an "adverse inference as pertains to Mr. Magrino's refusal to testify."

Concluding, Mr. Joyce requested the Court to impose sanctions against the Town for failing to provide proper paper discovery, including the emails, and to draw an adverse inference from (1) the Town's failure to provide the emails, (2) the deletion of the emails by Mr. Diviny, and (3) from Mr. Magrino's refusal to testify.

Defendant's October 31, 2019 Correspondence

In correspondence sent by him on October 31, 2019 via email at 5:00 p.m., Mr. McPartland opposed Mr. Joyce's request for sanctions and/or adverse inferences. Mr. McPartland asserted that an examination before trial of Mr. Lenihan had taken place that morning, during which Mr. Lenihan testified that all emails "which contain the Plaintiff's name or address have been disclosed." Mr. McPartland contended that "I have never denied possessing any emails related to this matter and have not made this representation to the Court (Emphasis added)." He continued, "The issue of the production of the emails was clarified during the deposition of Mr. Lenihan, which took place today. Mr. Lenihan testified that he searched several terms and compiled the emails that were produced to Plaintiff's counsel. After further investigation and discussion, it was discovered that not all of the emails were produced. Mr. Lenihan then conducted a second search, searching for all three terms, individually, as well as collectively, which resulted in the most recent production of documents. This error, by an information technology employee of the Defendant, was not willful."[FN5] (Emphasis added).

Mr. McPartland stated that the addresses of the two former employees were provided "when the depositions were requested". "With regard to witness Jane Slavin, due to a potential conflict, she retained separate counsel."[FN6]

As to Mr. Joyce's claims of spoliation, Mr. McPartland contended that, although Mr. Diviny may have deleted emails, Mr. Lenihan testified that deleted emails could be recovered. Mr. McPartland opposed submitting Mr. Magrino to examination before trial, stating that he "was not a decision-maker related to the petition for a zone change." Mr. McPartland concluded his letter by stating that "at this time all relevant emails have been produced to the Plaintiff." (Emphasis added).

Plaintiff's Counsel's Correspondence of October 31, 2019

Mr. Joyce informed the Court in a letter dated October 31, 2019 and emailed to the Court on November 1, 2019 at 6:15 a.m. that he had just received 250 emails contained within approximately 1,500 pages, together with a privilege log which listed several more. He complained that this production dwarfed the number of pages previously produced of approximately 43 emails, 35 of which were produced and 8 of which were claimed to be privileged.

Mr. Joyce complained that Mr. Lenihan testified at his examination before trial that he was first asked to search for emails in August 2019, well after two deadlines for production had passed. Mr. Joyce also complained that Mr. Lenihan testified that Mr. Magrino dictated the search terms, such that the initial production of fewer than 50 emails was significantly more limited than the second search which involved searching the relevant terms individually rather than collectively. Mr. Joyce continued that although each of the Town Board members submitted affidavits attesting that there were no more emails other than those previously disclosed and those reported in the privilege log, in fact, the October 31, 2019 correspondence from Mr. McPartland enclosed a further privilege log which reflected that additional emails existed. He added that Mr. Magrino also submitted an affidavit that there were no additional emails, despite the fact that he received some of the newly disclosed emails when they were originally sent. As noted above, Mr. Joyce complained that "[t]he IT Specialist testified that even the specific search words were dictated by Mr. Magrino without any input from the IT Specialist." Finally, Mr. Joyce submits that various employees of the Town's Clerk's Office and Building Department testified that they had not been requested to search for relevant emails.

The November 1, 2019 Conference

On November 1, 2019, counsel appeared before the Court to address the issues raised in the various correspondence sent to the Court. The minutes of that proceeding are hereby incorporated into this Sanctions Order.[FN7]

Mr. Saal's False Assurance that All Emails had been Provided

During the conference, the Court attempted to ascertain why Mr. Saal had misled the [*7]Court on October 4, 2019 by assuring that all emails had been produced. Unfortunately, Mr. Saal did not appear at the conference to represent the Town or to defend his statements. Rather, Mr. McPartland appeared for the Town. Notably, although Mr. McPartland advised the Court in his correspondence of October 30, 2019 that a representative of the Town would be present to explain the Town's failure to produce all relevant emails which had been previously ordered, no representative from the Town appeared. Conspicuous by his absence was Mr. Magrino who, as stated above, directed the production of the electronic discovery by the Town.

Mr. McPartland attempted to explain Mr. Saal's false assurances to the Court by stating that Mr. Saal was "under the impression that we had provided all emails" (Tr. 4:18), a facile explanation which the Court found insulting. Mr. McPartland doubled down on stating that the Town had a search performed by its IT specialist who also signed an affidavit attesting to the search, claiming that it only became known to the Town that there were additional emails after Mr. Joyce had already completed 6 depositions.

The Court was informed that Mr. Magrino instructed Mr. Lenihan to search for emails containing three combined search terms, rather than allowing the IT specialist to determine what search would yield a complete production or specifying a search of each individual term separately. This arbitrarily restricted the search to those emails which contained all of the search terms, instead of any one term. Mr. McPartland claims that the "error" was first discovered during preparation of Mr. Lenihan for his examination before trial because Mr. McPartland was aware of the existence of an email which was not produced by the search.

When pressed by the Court as to whose responsibility it was to oversee the search, Mr. McPartland admitted that it was his. Again, the emails in question were ordered to be provided months earlier. Nevertheless, Mr. McPartland stated that the search was not conducted until preparation for the examinations before trial in October 2019, months after the Court's deadline.

Notably, Mr. McPartland advised the Court that he relied on Mr. Magrino to confirm that all emails had been produced. (Tr. 9:1-7). When the Court inquired why Mr. Magrino was not present to explain his failures, Mr. McPartland claimed that he was not present because "I thought that it would better be explained by the person who did the search versus Mr. Magrino." Nevertheless, Mr. McPartland failed to bring that person, the IT specialist, to Court to explain the circumstances under which he received instructions for and/or performed the search.

It baffles this Court to understand why counsel charged with responsibility to provide discovery in accordance with multiple Court Orders issued at various conferences waited until he was preparing a witness for what he described as a second round of depositions, to ascertain that his client and his client's Town Attorney had not provided everything that should have been provided. Moreover, it is inexplicable to this Court that Mr. Saal made affirmative representations that all relevant materials had been provided when, in fact, all had not been provided and, further, what was provided was fully less than 10% of all relevant materials. Further, the Court is stupefied that Mr. McPartland would explain Mr. Magrino's absence from the November 1, 2019 conference by suggesting that Mr. Lenihan, the individual who performed the search at Mr. Magrino's direction, would provide a better explanation when, in fact, Mr. McPartland did not bring Mr. Lenihan to Court to do so.

Mr. McPartland's False Assurance that All Newly Discovered Emails Had Been Provided

Continuing, the Court addressed Mr. McPartland's assurance that all newly discovered emails had been provided to Mr. Joyce. This written assurance is set forth in Mr. McPartland's letter sent via email at 3:53 p.m. on October 30, 2019. As stated above, Mr. Joyce advised the [*8]Court in his letter emailed the following morning at 8:33 a.m. that as of 10:48 p.m. on October 30, 2019, he had not received any new emails from Mr. McPartland.

At the November 1, 2019 conference, Mr. McPartland admitted having made a written assurance to the Court two days prior that all newly discovered emails had been provided. Significantly, even when faced with Mr. Joyce's letter denying receipt of any new emails as of 10:48 p.m. on October 30, 2019, Mr. McPartland reaffirmed to the Court that the newly discovered emails had been transmitted electronically to Mr. Joyce on October 30, 2018 when they had not. (Tr. 10:18).

It was only when the Court asked for the transmittal email to Mr. Joyce that the Court was able to confirm that despite Mr. McPartland's assurances, the emails were not delivered to Mr. Joyce until the following day, October 31, 2019 at 9:26 a.m., when the parties were actually engaged in the depositions.

This can be synopsized in the following exchange (Tr. 12:22-25).

The COURT: "So, can we agree then, sir, that your statement to me in your letter of October 30th that a copy [of all new emails] had already been delivered to Mr. Joyce was untrue?"Mr. McPARTLAND: "Yes, Your Honor."

Thus, there can be no dispute that Mr. McPartland misrepresented to the Court that relevant discovery had been provided to Mr. Joyce when, in fact, it had not been.

The Last-Minute Instruction to Ms. Slavin to Secure Separate Counsel

At the conferences held on July 12, 2019 and October 4, 2019, the Court directed that examinations before trial be completed no later than October 31, 2019. This was after several previous deadlines were not met. Notwithstanding those directives, the Town did not advise Ms. Slavin, an engineer who represented plaintiff in his subdivision approval applications before her employment with the Town, to obtain separate counsel until shortly before her examination was scheduled to take place. This delayed Ms. Slavin's deposition while she sought her own legal representation, causing further delay to the completion of discovery.

Mr. Diviny's Deletion of Emails

Mr. Joyce complained that Mr. Diviny, an attorney member of the Town Board, deleted emails despite having knowledge that they were the subject of a preservation request.

Mr. McPartland asserted that whether Mr. Diviny had, in fact, deleted emails was less than clear. Mr. McPartland stated that Mr. Diviny's testimony was that it was

possible that emails may have been deleted from his inbox. His testimony was a little bit unclear, but he said he was aware. He said he was an attorney who received a preservation letter, and that there is a possibility that emails may have been deleted from his inbox.

In addition, Mr. McPartland claimed that although the emails may have been deleted by Mr. Diviny, they were recoverable from the Town's server because deleting an email does not delete it permanently. This, of course, sidesteps the fact that Mr. Diviny, an attorney, was aware of the preservation requirement.

The fact that deleted emails may be recoverable does not negate the fact that a Town Board member who is an attorney may have deleted relevant material despite knowledge that the items should be preserved because of a litigation hold.

The Missing Video of the February 8, 2018 Town Board Meeting

Mr. Joyce's next complaint concerns a missing videotape of a Town Board meeting held [*9]on February 8, 2018.

In response to this charge of destruction of evidence, Mr. McPartland informed the Court that although "most meetings are recorded and put on a website for public review", no one taped this specific meeting.

22 NYCRR §130-1.1 Frivolous Conduct

At the October 31, 2019 conference, the Court indicated its intention to assess sanctions pursuant to Court Rule §130-1.1 (properly cited as 22 NYCRR §130-1.1) based on the conduct of defendant and its counsel.

As applicable here, Court Rule §130-1.1 provides:

(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, 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 Part.(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.

Frivolous conduct is defined in section 130-1.1(c)(2) and (3) of the Rule as follows:

(c) For purposes of this Part, 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; or(3) it asserts material factual statements that are false.

The Court hereby finds that the defendant, its officials, including Town Attorney Magrino and its attorneys, Mr. Saal and Mr. McPartland, engaged in frivolous conduct as defined by Court Rule §130-1.1(c)(2) and (3). The frivolous conduct of these individuals includes: (1) substantially delaying production of emails which defendant was directed to provide, (2) improperly constricting the scope of the search for electronic discovery that was initially conducted, and (3) delaying production of various witnesses, including Ms. Slavin, for examination before trial. The Court further finds that these actions impermissibly and without good cause or explanation delayed the progress of this action and resulted in the Court and Mr. Joyce being misled by the false statements made. Finally, the Court finds that the false statements made by Messrs. Saal and McPartland were made with the intent to mislead the Court and opposing counsel. In addition, emails may have been deleted by Mr. Diviny despite knowledge of a litigation hold on such items. Furthermore, Town Attorney Magrino supervised and orchestrated the Town's efforts to withhold relevant information, cause delay and obfuscate issues, going so far as to execute a false affidavit that no more emails existed and having the Town officials do likewise. The Court concludes that this conduct, individually and collectively, was designed to and did delay and prolong the resolution of the litigation and cause plaintiff to [*10]incur unnecessary fees in an effort to wage a war of attrition.

Pursuant to Court Rule §130-1.2:

The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition 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. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct.

Pursuant to Court Rule §130-1.3, the payment of sanctions by an attorney shall be deposited with the Lawyers' Fund for Client Protection.

Monetary Sanctions Imposed Pursuant to Court Rule §130-1.1

Pursuant to Court Rule §130-1.1, the Court hereby assesses sanctions against Mr. Saal in the sum of $2,500 and against Mr. McPartland in the sum of $5,000. Said payments shall be made to the Lawyer's Fund for Client Security, 119 Washington Avenue, Albany, NY 12210. Mr. Saal and Mr. McPartland shall enclose a copy of this Sanctions Order with their payment when made. Proof of payment shall be provided to Chambers within 35 days of the date hereof. If proof of payment is not submitted, this matter will be referred to the Second Judicial Department Attorney Grievance Committee, Committee for the Ninth Judicial District ("the Grievance Committee") for further action.

Further, the Court hereby sanctions the defendant the actual expenses incurred by plaintiff in attempting to rectify the incomprehensible and inexcusable efforts by its officials and counsel to delay the resolution of this matter. Mr. Joyce is directed to submit his time sheets pertaining to the exchange of correspondence between and among the parties and the Court on October 30, 2019 and October 31, 2019 and for his appearance at the hearing held on November 1, 2019, to defense counsel for transmission to, and payment by, the Town. Payment shall be made within 30 days of submission, unless the Town contests the amount sought. The time sheets shall be provided to the defendant's counsel no later than December 9, 2019. The time sheets may be redacted to remove privileged matter, if any. If the Town disputes the amount of any fees submitted by Mr. Joyce, it may make a letter application to the Court within 10 days of submission of the fee statements.

Additional Sanctions to Remedy the Discovery Abuses

In addition to the financial sanctions imposed above, the Court imposes the following sanctions.

Mr. Joyce shall be permitted to conduct further examinations before trial of all individuals who were deposed prior to the October 31, 2019 production of emails. The Town shall pay Mr. Joyce's fees for preparing for and conducting the continued examinations before trial. The Town shall also bear the costs of the stenographer and shall provide transcripts of the proceedings to Mr. Joyce without charge. Mr. Joyce shall submit a fee statement to defense counsel for these services. Payment of any invoices submitted by Mr. Joyce shall be made within 30 days of submission, unless challenged by the Town in like manner as set forth above.

Plaintiff is hereby authorized to engage an IT Consultant, at the expense of the Town, to design, direct, oversee and conduct a search of the defendant's computer server for the purposes of identifying any and all emails and electronic documents of any kind which refer or relate to plaintiff, plaintiff's application and/or plaintiff's property (the IT Consultant shall develop [*11]appropriate search terms in consultation with the Town's IT specialist).[FN8] The search shall include a search of all deleted items which are still recoverable from the server, including any emails addressed to or sent by Mr. Diviny or on which he was copied. In the event the costs of such services exceeds $10,000, payment of any such excess shall be subject to Court approval. The search for relevant emails shall be expanded to include a search of the personal email accounts of all Town Board members.

The Town is directed to conduct a search for all audio and/or video recordings of the February 8, 2018 Town Board meeting and to provide a copy, without charge, of any such recording, if found, along with an affidavit as to the whereabouts of the recording prior to it being located. If the recording is not found, the Town shall produce an affidavit from the individual who actually performed the search, attesting to what efforts were made to locate the audio/video. Defense counsel (not Mr. Magrino) shall personally oversee the search, which shall be completed within 30 days from the date of this Sanctions Order.[FN9]

The Town shall search for all documents from February 2017 to date, including electronic memoranda and correspondence, from any Town office or department which relate to plaintiff's property and/or his application. The search shall be overseen by defense counsel who shall attest in an affirmation to be submitted to the Court within 30 days of the date hereof as to the steps employed to locate said items.

Referral to the Grievance Committee

During the course of the November 1, 2019 conference, the Court indicated its intention to refer Mr. Diviny, Mr. Saal, Mr. McPartland and Mr. Magrino to the Grievance Committee of the Ninth Judicial District for investigation into their conduct. (Tr. 45:10).

The law is clear that a judge must act in a manner which promotes public confidence such that a judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct must take appropriate action.

In this regard, Court Rule §100.3(D)(2) provides:

A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility[FN10] shall take appropriate action.

Further, the New York Advisory Committee on Judicial Ethics has opined that

the judge who learns of an attorney's potential misconduct is in the best position to evaluate and assess the relevant circumstances known to the judge to determine whether a substantial likelihood exists that the attorney committed a substantial violation of the Rules of Professional Conduct. NY Jud. Adv. Op. 10-85, 2010 WL 8251253 [2010].

Once the judge determines that an attorney has likely committed a substantial violation, the judge must report the attorney's conduct to a disciplinary authority only if the alleged misconduct rises to such an egregious level that it implicates the attorney's honesty, trustworthiness or fitness as an attorney. Id. See also NY Jud. Adv. Op. 07-129, 2007 WL [*12]9187194 [2007] (where the Advisory Committee opined that the judge should report attorney to the appropriate disciplinary committee where attorney admitted to having committed perjury.)

Thus, it is beyond cavil that a Court has discretion in determining whether to report counsel's questionable conduct to a disciplinary authority. NY Jud. Adv. Op. 10-64, 2018 WL 8251238 [2010]. As the Advisory Committee of Judicial Ethics stated,

the judge has the discretion to take less severe, appropriate measures, including but not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and/or sanctioning a lawyer. NY Jud. Adv. Op 10-85, supra.

Mr. Diviny

Having had the opportunity to review the minutes of the proceedings, the relevant correspondence, and the applicable law, the Court concludes that its initial inclination to refer Mr. Diviny to the disciplinary authority was premature. That is not to say that Mr. Diviny's deletion of emails, if true, was acceptable. Rather, the record is not fully developed to allow the Court to conclude at this time that Mr. Diviny, in fact, deleted emails. Consequently, the Court cannot conclude that it has "information indicating a substantial likelihood" that he committed a substantial violation of the Rules of Professional Conduct. If the search by the IT Consultant engaged by Mr. Joyce reveals that Mr. Diviny, in fact, deleted emails after he had knowledge of the litigation hold placed on them, Mr. Joyce shall inform the Court and shall provide such evidence as is produced to support that conclusion. If the Court confirms that Mr. Diviny deleted emails after he obtained knowledge of a litigation hold, the Court will then refer the matter to the Committee.

Mr. Saal

Upon further consideration of the circumstances, the Court concludes that the financial sanctions imposed on Mr. Saal above constitute "appropriate action" to excuse a referral to the Committee. To be sure, the Court has no doubt that it has sufficient knowledge that Mr. Saal committed substantial violations of Rules of Professional Conduct which could justify referral to the Committee. These include violations of the following: Sections 1200.3.3(a)(1), 1200.3.4(a)(1), 1200.3.4(a)(6), 1200.8.4(a), 1200.8.4(b), 1200.8.4(c), 1200.8.4(d) and 1200.8.4(h).

However, it appears that Mr. Saal's involvement in this action has been limited. Other than his appearance before the Court on October 4, 2019, the Court has no knowledge of his participation with this case. It does not appear that he supervised any of the discovery production and he did not correspond with the Court on any matters. He also has not filed any papers or pleadings on NYSCEF related to this case.

In addition, the Court is certain that Mr. Saal will assert, in defense of his statements, that he relied on Mr. McPartland and persons within his law firm, Mr. Magrino other Town employees to provide him with accurate information. Clearly, Mr. Saal had an obligation to ensure that the statements made by him were true before uttering them in open court. Further, it appears that Mr. Saal attempted to evade the issue when asked directly by the Court if all emails had been produced, repeatedly seizing on an assertion that all emails of the same sum and substance had been produced. It wasn't until the Court pursued the inquiry that Mr. Saal relented and admitted that the emails were not the same ones previously produced.

Considering the totality of the circumstances, the Court believes the financial sanction assessed is sufficient to prevent a repeat of such conduct by Mr. Saal.

Mr. McPartland

The circumstances regarding Mr. McPartland's conduct in this matter differ substantially from that of Mr. Diviny and Mr. Saal.

Mr. McPartland was, up until November 13, 2019, the attorney of record for the Town.[FN11] It was Mr. McPartland who oversaw and conducted the litigation as the Town's lead counsel. It was Mr. McPartland who oversaw the production of discovery. It was Mr. McPartland who represented to the Court in his letter of April 9, 2019 that no emails between the Board and Mr. Magrino existed and who then dispatched Mr. Saal to Court on October 4, 2019 to represent to and attempt to mislead, the Court that all relevant emails had been provided. It was Mr. McPartland who corresponded with the Court concerning the late October 2019 discovery dispute. It was Mr. McPartland who persisted in informing the Court that copies of the "newly discovered" emails had been provided to Mr. Joyce when a simple inquiry to his staff would have verified they had not been. It was Mr. McPartland who was aware that the scope of the emails delivered was incomplete. It was Mr. McPartland who relinquished his obligation to supervise and produce discovery to Town Attorney Magrino whose conduct is, in and of itself, suspect.[FN12] It was Mr. McPartland who allowed Mr. Magrino to improperly curtail the search by Mr. Lenihan when it was Mr. McPartland's obligation to oversee that production. It was Mr. McPartland who submitted the false affidavits prepared by Mr. Magrino to Mr. Joyce. It was Mr. McPartland who stated in writing that he would produce Mr. Magrino and Mr. Lenihan in court to explain the circumstances surrounding the "newly discovered" emails but then produced neither. Instead, he offered the ridiculous explanation that Mr. Magrino was not there because Mr. Lenihan would provide a better explanation but offered no explanation for Mr. Lenihan's conspicuous absence.

Consequently, the Court concludes that it has information indicating a substantial likelihood that Mr. McPartland committed a substantial violation of the Rules of Professional Conduct which warrants referral to the Grievance Committee. Like Mr. Saal above, the Court believes that there is substantial evidence that Mr. McPartland violated each or all, of the following: Sections 1200.3.3(a)(1), 1200.3.4(a)(1), 1200.3.4(a)(6), 1200.8.4(a), 1200.8.4(b), 1200.8.4(c), 1200.8.4(d) and 1200.8.4(h) of the Rules of Professional Conduct.

Mr. Magrino

Like Mr. McPartland, Mr. Magrino's involvement in this matter is significant. So, too, are his transgressions. As the Town Attorney, Mr. Magrino had intimate knowledge of plaintiff's claims and attempt to pursue subdivision of his property. Mr. Magrino was involved in communications, including emails regarding the issues raised herein, from inception. In his capacity as Town Attorney, Mr. Magrino was certainly aware from having received and sent [*13]numerous emails that the Town's initial production of emails was far from complete. Nevertheless, Mr. Magrino was content to allow, perhaps even facilitate, defense counsel's production of fewer than 50 emails when he had knowledge that hundreds more emails existed. Mr. Magrino's limiting instructions to Mr. Lenihan concerning the scope of the email search to be performed resulted in the late disclosure of relevant information and, quite possibly, the concealment of relevant evidence. Notably, Mr. Magrino failed to request the relevant emails until August 2019, despite the fact that disclosure of the emails was initially directed by the Court to be completed by March 2019 (later expanded in scope and extended to May 2019). Further, Mr. Magrino failed to request that relevant Town Departments, such as the Town Clerk's Office and Building Department, search for records and emails, although he knew that they were involved in plaintiff's applications. Compounding matters, Mr. Magrino prepared and submitted affidavits to various Town officials and employees which he knew or should have known contained false statements denying the existence of additional emails. As noted, Mr. Magrino executed such an affidavit as well.

The Court concludes, therefore, that it has information indicating a substantial likelihood that Mr. Magrino committed a substantial violation of the Rules of Professional Conduct which warrants referral to the Grievance Committee. As with Mr. McPartland and Mr. Saal, these include Sections 1200.3.3(a)(1), 1200.3.4(a)(1), 1200.3.4(a)(6), 1200.8.4(a), 1200.8.4(b), 1200.8.4(c), 1200.8.4(d) and 1200.8.4(h) of the Rules of Professional Conduct. Consequently, the Court respectfully refers Mr. Magrino to the Committee for such action as the Committee deems appropriate.

Counsel whose behavior has been addressed in this Sanctions Order are admonished not to repeat such behavior in this or any other case. Violation of this admonition will, most assuredly, result in a referral (or additional referral) to the disciplinary authorities. To be sure, the Court is incensed that attorneys representing a municipality in an action brought by a citizen have engaged in the behavior described in this Sanctions Order which behavior was clearly designed to inhibit the citizen's right to pursue legal redress against the municipality.

Dated: November 20, 2019

New City, New York

HON. PAUL I. MARX, J.S.C. Footnotes

Footnote 1: This matter was previously assigned to the Hon. Thomas E. Walsh, III, JSC (ret.). Justice Walsh recused himself from this matter in July 2018, simultaneously adjourning the petition for 60 days and staying the action for 30 days. This Court subsequently set a briefing schedule on the petition.

Footnote 2: Plaintiff's demand was later expanded to include all email and other written communications pertaining to his application.

Footnote 3: This Court does not permit discovery motions except in extraordinary cases. In cases where parties fail to comply with the Court's directives or to produce discovery, the Court requires counsel to attempt to resolve any issues between themselves, failing which counsel is permitted to write the Court to request a conference to address the issue(s) raised.

Footnote 4: The conference was adjourned to October 4, 2019 to accommodate both counsel's schedule.

Footnote 5: Notwithstanding Mr. McPartland's statement that the "error" was committed by the Town's information technology person, it was revealed later that, in fact, Mr. Magrino directed the search. This subtle misstatement was, nevertheless, misleading.

Footnote 6: The nature of the conflict is not stated. The Court surmises that the conflict arises from the fact that plaintiff engaged Ms. Slavin to serve as his engineer in submitting his applications to the Town prior to Ms. Slavin becoming a Town employee.

Footnote 7: References to the transcript of the proceedings of November 1, 2019 will be set out as "Tr. page:line."

Footnote 8: Mr. Magrino shall not dictate the search terms.

Footnote 9: If no recording is located, Mr. Joyce's IT consultant is authorized to search for it to determine whether it existed and was deleted.

Footnote 10: Now known as the Rules of Professional Conduct, 22 NYCRR §1200 et seq.

Footnote 11: Apparently, while this Sanctions Order was being drafted, the Town engaged new counsel as of November 13, 2019, substituting the firm of Keane & Beane, P.C. for Mr. McPartland's firm, Marshall Dennehy Warner Coleman & Goggin, NYSCEF document #93. Consequently, in addition to posting on NYSCEF, a copy of this Sanctions Order is being mailed to Mr. Saal and Mr. McPartland to ensure receipt by them.

Footnote 12: The Town's defense counsel is hereby directed to obtain any information it may need to defend this action directly from whatever Town agency or Department may be appropriate. Mr. Magrino's conduct in this action raises the specter of an abrogation of his obligation to ensure that plaintiff receives all relevant discovery.