Opinion
Index No. LT-304236-22/KI
11-10-2022
Asif Noor, Petitioner-Landlord, v. Mohamad Asad; 7307 5TH AVE CORP; "JOHN" "DOE"; and "JANE" "DOE", Respondent-Tenant
Alcides A. Casares Attorney At Law PLLC 278A Wyckoff Ave Counsel for Petitioner Law Office of Peter De Vries, PLLC Of Counsel for Petitioner Law Office of Arniotes Calakos PLLC Counsel for Respondent
Unpublished Opinion
Alcides A. Casares Attorney At Law PLLC
278A Wyckoff Ave
Counsel for Petitioner
Law Office of Peter De Vries, PLLC
Of Counsel for Petitioner
Law Office of Arniotes Calakos PLLC
Counsel for Respondent
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
Sandra E. Roper, J.
ORDER TO SHOW CAUSE
1
AFFIRMATION IN SUPPORT OF OSC & EXH. ANNEXED
2-3
AFFIRMATION IN OPPOSITION TO OSC & EXH. ANNEXED
4-5
AFFIRMATION IN REPLY TO OSC
6
PETITIONER'S ISSUE BRIEF
7
RESPONDENT'S AFFIRMATION IN REPLY TO PETITIONER'S BRIEF
8
PETITIONER'S REPLY BRIEF
9
TRANSCRIPT FROM MAY 11, 2022
10
INTRODUCTION
Petitioner moves This Honorable Court by Order to Show Cause to vacate judgment for Attorney's Fees granted in favor of Respondent after dismissal of case and attorney fees hearing held after due deliberation of facts presented and conduct of Petitioner Counsel. For the reasons set forth below pursuant to common law exception and statutory exception pursuant to 22 NYCRR 130 -1.1 (c) to the American Rule for the awarding of Attorney's Fees, May 11, 2022 Decision and Order Granting Judgment for Attorney's Fees is upheld but modified accordingly. Petitioner's Order to Show Cause to Vacate Judgment in the amount of $4,736.50 for Attorney's Fees is in part hereby GRANTED, and Judgment vacated. ORDERED, Judgment in the amount of $2,500.00 for Attorney's Fees with interest from May 11, 2022, is hereby GRANTED.
PROCEDURAL AND FACTUAL HISTORY
Commercial Landlord-Tenant Holdover summary proceeding commenced by Petitioner upon the filing of Petition and Notice of Petition on March 9, 2022, to allegedly recover premises leased by Respondents. Petitioner in obvious procedural error served Rent Demand which is predicate notice for non-payment summary proceeding rather than predicate Notice To Cure or Notice of Termination required for holdover summary proceeding. At the first court appearance held on April 7, 2022, Petitioner appeared by counsel whereas Respondent appeared pro se. Presiding jurist invoked the exercise of judicial discretion to decide and order the grant of extension of time to file Answer pursuant to CPLR § 2004 and for Respondent to retain counsel by the next scheduled appearance date of May 11, 2022.
On said appearance date, Petitioner Counsel failed to appear without notification to court whereas Respondent Counsel appeared and proceeded to argue for application to This Court to dismiss this case for failure to state a cause of action for a commercial holdover summary proceeding by virtue of the Petitioner being neither landlord, owner nor lessor of alleged premises sought to be recovered. Respondent Counsel argued that upon being retained by Respondents on April 25, 2022, during her drafting of an Answer and in researching the property's information through ACRIS, she discovered that Petitioner was not the owner nor the lessor of the premises to be recovered. She argued that she emailed Petitioner Counsel on April 25, 2022, in an attempt to avoid any further expenditure of time and to mitigate costs to her client, to no avail. Petitioner Counsel failed to respond. Respondent Counsel further argued that Petitioner Counsel's intentional unresponsiveness required her to protect her clients' interest through the avoidable expenditure of time to comply with judge's order of April 7, 2022, for the extension of time to answer and to retain counsel by the next appearance date of May 11, 2022. She therefore finalized, served, and filed Answer with Counterclaim on May 9, 2022. Answer and Counterclaims inter alia contained affirmative defenses to dismiss for failure of Petitioner as improper party as not being landlord, nor owner; for false allegations contained in the Petition and failure to state a claim for which relief can be granted; as well as Counterclaim for expenses, legal fees and cost; and the prayer for relief in the Wherefore clause is "Respondent demands judgment reimbursement of all legal fees, costs and expenses in the amount of $2,500.00 related to answering and responding to the alleged Petition" (NY St Cts Elec Filing [NYSCEF] Doc No. 10, answer at 4). Respondent Counsel further argued that Petitioner Counsel contacted her after the filing of Answer and Counterclaim on May 9, 2022, and nebulously discussed a possibility of settlement as well as his perhaps not appearing as well as the likelihood that case will be dismissed by his non-appearance. She argued that based upon his equivocation and vacillation that in order to protect her client's interest she had the professional ethical obligation to appear in court on May 11, 2022. She therefore asked Petitioner Counsel whether court appearance would be in-person or virtual, to no avail. She therefore called the court clerk to inquire and was informed that appearances are in-person. She then left to go to the court at about 9:15 AM. Petitioner Counsel proffers email chain corroborating Respondent Counsel's account as to the morning of May 11, 2022, which she initiated at 8:32 AM with the subject line "URGENT" (Casares affirmation, exhibit D). Petitioner Counsel did not allegedly respond until 9:32 AM, after the commencement of court's calendar call. However, Respondent Counsel proffers an inconsistent email chain which does not show said 9:32 AM email from Petitioner Counsel (Calakos affirmation in opposition, exhibit 1). She further argued, moreover, that Petitioner Counsel ambivalently and undecidedly equivocated as to what he would actually do in regard to this obviously defective summary holdover proceeding. Petitioner Counsel's responsive email chain corroborating Respondent Counsel's account allegedly sent at 9:32 AM stated, "I have not gotten the link. Firthermore [ sic ], I will not appear, I will let it be dismissed. I will refile." (Casares affirmation, exhibit D). Respondent Counsel further argued that the unresponsiveness, the obstreperous and the ambivalent conduct by Petitioner Counsel in not discontinuing this action after she had emailed him about this incurable defect as far back as April 25, 2022, was the cause of unnecessary expenditures of legal fees inflicted upon her client. Respondent Counsel zealously argued that it was patently unfair that Petitioner Counsel full-well knowing that he could not proceed with this incurably defective holdover summary proceeding yet refused to definitively file a Notice of Discontinuance to foreclose further avoidable expenditure of costs for attorney fees by Respondents. It is upon this complained of conduct by Petitioner Counsel that Respondent Counsel further argued for application for attorney fees, upon which This Court found persuasively compelling based upon the indisputable facts, corroborating documents and therefore granted dismissal of this instant summary holdover proceeding and convened attorney fees hearing. Respondent Counsel was sworn in and testified under oath as to the expenditure of attorney fees and by Decision and Order, dated May 11, 2022, action was dismissed and judgment for attorney's fees awarded in the amount of $4,736.50.
It is worth noting, COVID Pandemic New York State Moratorium on Evictions had but a mere 3 months prior expired on January 15, 2022, prior to the first appearance of this case on April 7, 2022. The COVID Pandemic was an ecumenical trauma inflicted upon commercial landlords and tenants, whether mom and pop owner occupied or multimillion dollar publicly traded entities. As such, the court did not operate as it did Pre-Pandemic. Much had changed in order to ease back into some semblance of efficiency to the commercial landlord tenant jurisdiction. There was much more latitude afforded to all litigants particularly when litigant or litigant's counsel failed to appear. So much so that This Court's Procedural Rule would not grant default judgment nor dismissal until at least two failures to appear by relevant party. During this ramping up to in-person there were routine failures to appear because of confusion as to virtual or in-person and also many litigants and their counsel becoming ill with COVID. It was incumbent on Petitioner Counsel's professional responsibility to perform with due diligence research and investigation of the protocols and procedures that may have been modified to deal with the new reality of commercial landlord tenant in Kings County Civil Court. In his failure to so do, he merely flippantly stated as a fact a procedure of which he has no control over: "I will let [the case] be dismissed" (Casares affirmation, exhibit D). Dismissal of a case lies squarely with the court and not with any litigant. Once the jurisdiction of the court has been effectuated, dismissal lies solely within the jurisdiction of the court. However, Petitioner had within its authority the legal procedural mechanism to file a notice of discontinuance to attempt to terminate the case. However, filing of a Notice of Discontinuance is neither dispositive. Likewise, once the jurisdiction of the court has been established, it remains within the sole discretion of the court's jurisdiction to accept or reject filed notice of discontinuance where opposing litigant has compelling argument to the contrary.
Thereafter, on May 25, 2022, Petitioner filed the instant Order to Show Cause to vacate the May 11, 2022, judgment for attorney fees returnable for argument on June 14, 2022. The facts that are proffered by Petitioner Counsel as in dispute are not relevant here: to wit, Petitioner Counsel affirmed and testified that he emailed and also spoke to Respondent Counsel daughter that morning, but this was after the commencement of the calendar call and Respondent Counsel had already left for court; and that he further states that he would not be coming and that he would let the case be dismissed and then refile, are of no moment, since even if true could not have been relied upon by Respondent Counsel to do nothing for fear of default judgment against her client for her failure to not file Answer nor to appear merely based upon his protestations, which would inure to the detriment of her client as failure to comply with jurist's decision and order of April 7, 2022. On the return date of June 14, 2022, Petitioner's Of Counsel, Counselor De Vries, with no personal knowledge of the facts and circumstances, appeared without Petitioner Counsel, Counselor Casares, who possesses the personal knowledge and to whom the complained of conduct was attributed to, stating that Counselor Casares was not in town. Although Counselor De Vries argued that Counselor Casares' appearance was unnecessary because he was arguing the law and not the facts, This Court disagreed. This Court ordered that under the specific circumstances of this matter as to the complained of conduct of Counselor Casares, his appearance was indispensable for his sworn testimony under oath with opportunity for Respondent Counsel, Counselor Calakos to cross-examine him on the facts. Court adjourned to July 20, 2022, for hearing on the Order to Show Cause, which was further adjourned to September 19, 2022, to allow Opposition and Reply papers to be submitted. On September 19, 2022, Petitioner Counsel, Counselor Casares, represented by Of Counsel, Counselor De Vries, and Respondent Counsel, Counselor Calakos, returned to argue the instant Order to Show Cause on the record. Counselor Casares was sworn in under oath and testified as to his remorse and admitted that he had committed errors in the wrong name of the landlord/owner of the property and that he also erred in the predicate notices served and filed as not being for holdover summary proceeding and that in hindsight that he should have filed a Notice of Discontinuance. Parties were ordered to upload the transcript of the May 11, 2022, attorney fees hearing onto NYSCEF at which time this instant matter shall be marked as submitted.
DISCUSSION
The American Rule is well settled common law, which dictates that each party bears the cost of its own attorney fees as merely an incident of litigation whether victor or loser. This common law principle is most uniquely divergent from most American common law principles that had been followed from the King's Bench. Conversely, "the English rule (applicable in most of the world) requires the losing party to pay the winner's reasonable attorney fees." Although controlling, the American Rule may be statutorily or contractually vitiated or may be overruled in the interest of justice upon a balancing of the equities where it is found that such offending conduct of a litigant so warrants. It has been held as warranted where "te opposing party's malicious acts cause a person to incur legal fees, and when the litigation creates a benefit to others" (Matter of John T., 42 A.D.3d 459, 463, 839 N.Y.S.2d 783, 786-787, 2007 NY A.D. LEXIS 8424, *7-8, 2007 NY Slip Op 6046, 3 [2007] citing Harradine v Board of Supervisors of Orleans County, 73 A.D.2d 118, 122, 425 N.Y.S.2d 182 [1980]). In Omanoff, the Appellate Division Second Department found that offending litigant "intentionally sought to inflict economic injury on respondents by forcing them to engage legal counsel To be recoverable those damages [sic attorney's fees] must have been proximately related to the malicious acts and the acts themselves must have been entirely motivated by a disinterested malevolence" (United Pickle Co. v Omanoff, 63 A.D.2d 892, 892-893, 405 N.Y.S.2d 727, 728-729, 1978 NY A.D. LEXIS 11895, *1-3 [1978], see 59 NY Jur, Torts, § 25).
“The English rule holds the potential, as its proponents argue, to deter frivolous or nonmeritorious lawsuits since a defendant facing such a lawsuit has an incentive to vigorously litigate the case, knowing that it will almost certainly win and its adversary will pay its fees (Theodore Eisenberg and Geoffrey Miller, Comment, The English Versus the American Rule on Attorney fees: An Empirical Study of Public Company Contracts, 98 Cornell L. Rev. 327 [2013] at 327). “The English rule would thus appear to serve the socially valuable function of deterring wasteful litigation, at least as long as the adversary is not judgment-proof and the litigant can ascertain the probability of success before trial” (id at 335).
A statutory exception to the American Rule is found in the Commercial Landlord Tenant Harassment Law NYC Admin. Code § 22-902, 22-903 (3) which provides for awarding of attorney fees and costs. Harassment Law redress may be sought as counterclaim in a summary proceeding, in which the tenant bears the burden of proof by a preponderance of the evidence for the alleged harassment, its effects and damages upon the tenant, which requires a Harassment Law Hearing (One Wythe LLC v Elevations Urban Landscape Design, 2020 NYLJ LEXIS 887 [2020]). Two elements must be proven:
"First, Tenant bears the burden of proof to demonstrate that the landlord's offending act or omission would reasonably cause the tenant's vacatur of the covered property or to surrender or waive any rights under a lease, other rental agreement or applicable law, NYC Admin Code 22-902 (a); to reasonably cause requires this determination to be made pursuant to the reasonable person standard, to wit, would a reasonable person as fact finder find that landlord's act or omission would more likely than not cause the tenant to vacate, surrender, or waive any rights under the lease or other rental agreement at issue. Second, landlord's offending act or omission must comprise or be the basis of one or more of the explicitly enumerated offending acts in the Harassment Law, NYC Admin Code 22-902 (a) (1-13). Enumerated in NYC Admin Code 22-902 (a) (1-13) are varied diverse offending acts or omissions that may be redressed by other penal as well as civil laws, ranging from threats of violence to discrimination of protected classes."(id at 26-27). Notably, of the enumerated offending Harassment Law acts is "repeatedly commencing frivolous court proceedings against a commercial tenant" (NYC Admin Code 22-902 [a] [5]). Once proven, NYC Admin Code 22-903 (3) provides for the awarding of ttorney fees.
Further statutory exception to the American Rule is provided by 22 NYCRR 130-1.1" to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics," by a party in civil litigation which authorizes courts to impose financial sanctions for" frivolous conduct" (Kernisan v Taylor, 171 A.D.2d 869, 870, 567 N.Y.S.2d 794, 795-796, 1991 NY A.D. LEXIS 3834, *3 [1991]; cf., Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of NY v 198 Broadway, 76 N.Y.2d 411 [1990]; see, Steiner v Bonhamer, 146 Misc.2d 10 [1989]). 22 NYCRR 130 -1.1 (a) states:
"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"
Whereas, pursuant to 22 NYCRR 130 -1.1 (c) 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;
(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 the professional ethical duty of counsel to ensure that legal papers and documents filed in court have been vetted for veracity of facts proffered and comply with current state of laws. Thus, whether attorney exercised the standards of a reasonable attorney forms the basis of the court's inquiry in determination of frivolous conduct that authorizes the court's imposition of costs and sanctions (DeRosa v Chase Manhattan Mortg. Corp., 15 A.D.3d 249, 793 N.Y.S.2d 1, 2005 NY A.D. LEXIS 1982). Pursuant to 22 NYCRR 130-1.1 (d), "an award of costs or the imposition of sanctions may be made only after a reasonable opportunity to be heard" (Matter of Fernandez v Nigro, 178 A.D.3d 703, 705, 2019 NY A.D. LEXIS 8736, *4-5, 2019 NY Slip Op 08672, 2, 113 NYS 3d 753 [2019]). Consequently, although 22 NYCRR 130-1.1 is punitive for frivolous conduct, it is not a substitute for the court's power to punish for contempt of court's orders (Stow v Stow, 262 A.D.2d 550, 550-551, 694 N.Y.S.2d 68, 69-70, 1999 NY A.D. LEXIS 6954, *2-4 [1999]; see Casey v Chemical Bank, 245 A.D.2d 258 [1997]; see also Matter of Kernisan v Taylor, 171 A.D.2d 869 [1991]). ontempt punishment pursuant to Judiciary Law § 753 is a rather drastic punitive enforcement tool statutorily bestowed upon courts in both criminal and civil jurisdictions from the very creation of the judicial system from the King's Bench. Consistent with court's inherent powers to punish parties for failure to adhere and comply to court's mandates, to wit, Court's Decisions and Orders, and to preserve the court's authority over the conduct of private parties as in civil matters, or society at large, to wit, The People, as in criminal matters. To do so, there must be some teeth, some stick to the court's enforcement powers (Home Heating Oil Corp. v Parris, 2019 NY Misc. LEXIS 5738, 2019 NY Slip Op 51663 [U], 65 Misc.3d 1216 [A], 2019 WL 5406813v [2019]). Contempt punishment is that enforcement tool statutorily provided to the courts with the teeth and the stick to assert its power to demand that its mandates be carried out by the contemnor. Contempt punishment, however, is not so readily granted without the utmost of fastidious due diligence and due deliberation by the courts, particularly in the context of civil matters. Contempt punishment is a crime in and of itself and therefore may be punished within the penal system just as any other crime, which carries with it the imposition of a sentence of incarceration to the contemnor. It is for that reason, that courts are reluctant to impose contempt punishment sentencing, whether by fine or more so drastic by a period of incarceration, particularly in civil matters. Nevertheless, such sentencing for contempt punishment carries the weight and gravitas that is sometimes required upon recalcitrant contemnors (Manswell v Baptiste, 2019 NY Misc. LEXIS 6200, 2019 NY Slip Op 29360, 113 NYS 3d 519, 2019 WL 6315273 [2019]). Contemnors that intentionally flout civil court judicial mandates must be punished by the court in its power to regulate conduct within the judicial system. Otherwise, we would foster an anarchic society where courts would be devoid of authority to regulate behavior and conduct of persons. The judiciary branch of government is tasked with the enforcement of the legislative's branch duly circumscribed codified laws of behavior and conduct of its people, particularly Counselors at Law who are first and foremost officers of the court. Therefore, after a court provides some level of latitude to the contemnor, there comes a watershed moment when the civil court, no matter how reluctantly it may find itself, must indeed exercise its punishment enforcement powers of contempt with all its full encompassing ramifications and consequences thereto. It is only disobedience of that explicit written or oral command or order shall be the subject to the very drastic punishment for contempt of court (see Application of Mullen, 31 N.Y.S.2d 710, 177 Misc. 734, 1941 NY Misc. LEXIS 2442 [1941]) . Judiciary Law § 753A-A.5 likewise bestows upon a court of record the power to punish, "by fine and imprisonment, either a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action may be defeated, impaired, impeded, or prejudiced, in [the case of] a person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness." It is well established in the Second Department that the "mere act of disobedience is sufficient to sustain a finding of civil contempt where the record reveals that such disobedience was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff's rights" (Kaywood v Cigpak, Inc., 258 A.D.2d 623, 685 N.Y.S.2d 770, 1999 NY Slip Op 01623 [2d Dept 1999], citing Yeshiva Tifferes Torah v Kesher International Trading Corp, 246 A.D.2d 538, 667 N.Y.S.2d 759 [2d Dept 1998]; see also Oppenheimer v Oscar Shoes, 111 A.D.2d 28, 488 N.Y.S.2d 693 [1st Dept 1985]; see also McNulty v McNulty, 81 A.D.2d 581, 437 N.Y.S.2d 438 [2d Dept 1981]). A hearing may be ordered by the court to determine whether the "rights or remedies of a party to civil action may be defeated, impaired, impeded or prejudiced by any disobedience to lawful mandate of court" (Great Neck Pennysaver v Central Nassau Pubs., 65 A.D.2d 616, 409 N.Y.S.2d 544 [2d Dept 1978]).
"Anglo-Saxon courts of justice are vested, by the very act of their creation, with the 'power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates,' and to protect the integrity of their proceedings and their officers from disruption and corruption. Historically, English and American courts have possessed this inherent authority to punish parties for contempt as of the moment they were constituted. When the judiciary exercises its inherent contempt power, it vindicates its authority and therefore its existence as an institution of separated government. Ancillary to the exercise of this inherent contempt power is the punishment or modification of behavior for the benefit of either the public generally or private suitors individually. Contrary to some inaccurate statements made by a myriad of American courts ranging from the "milk stool" (an idiom referring to the Criminal American Justice system as a three-legged milk stool comprised of 3 indispensable supporting branches - police, prosecutors and the courts, [U.S. Congress House Hearings 93d Congress. V.19, SELECT COMMITTEE ON CRIME, Street Crime in America [Prosecution and court innovation] Pts. 1-3.1st sess. April 9-13, 16-19; May 1-3, 8-9, 1973. At 149.]) - to America's highest, statutes regulating the judiciary's inherent contempt power are limitations on, not conferrals of, such power. While the judiciary's inherent contempt power is part of its definition as a political institution, its authority over penal law crimes of contempt is legislatively conferred. Crimes of contempt are entirely creatures of legislative enactment. They are conceptual cousins to those inherent powers wielded by courts to vindicate their own authority. The inherent judicial contempt power preserves both the court's authority and the rights of parties to a lawsuit. Under penal laws, courts punish contempt crimes just like any other crime, namely, by imposing a sentence for transgressions of the public's right to peace, security and good order" (Lawrence N. Gray, Article, Criminal and Civil Contempt: Some Sense of a Hodgepodge, 72 St. John's L. Rev. 337, 338-339 [1998]).
Although offending conduct here in the commencement of this action may not at first blush rise to the level of contempt of court particularly where Petitioner Counsel testified as being remorseful, his escalating conduct of neglect and violation of duty woefully lacked gravitas and impaired and impeded Respondent's remedies. Petitioner Counsel failed to exercise the standards of a similarly situated reasonable attorney as an officer of the court. In hindsight Petitioner Counsel admitted that there was indisputable error upon error upon error. He admitted that predicate notices were defective as not being for a summary holdover proceeding but rather for non-payment proceeding; predicate notices, notice of petition and petition all contained the incorrect party as Petitioner as not being the landlord, owner or lessor of alleged commercial premises being sought; and in his failure of not filing a notice of discontinuance once being notified as to this obviously frivolous case. Although at the commencement of this action, the conduct may not have risen to malice entirely motivated by a disinterested malevolence or bad faith to overrule the common law American Rule, nor even sufficient to trigger a claim pursuant to the Commercial Landlord Tenant Harassment Law, Petitioner Counsel's conduct escalated to intentional contumacious litigation tactics when Petitioner Counsel refused to respond to Respondent Counsel's first email on April 25, 2022. It was on this day that Respondent Counsel was retained, began drafting Answer and Counterclaims and researched and investigated ACRIS to discover that Petitioner was not the proper party. Not the landlord, nor owner nor lessor of the alleged premises. It is at that point on April 25, 2022, that Petitioner Counsel definitively knew of its compounded law office failure upon law office failure and could have at that time stopped the error ridden incurably defectively flawed and falsely sworn court filings and predicate notices from going forward. It is at this point that Petitioner Counsel engaged in vexatious litigation and dilatory and malicious litigation tactics causing strain and waste of judicial resources in contravention to 22 NYCRR 130-1.1. One of the long-lasting beneficial court modified Pandemic procedures is the authorized computer filing of documents in the Civil Court Commercial Landlord Tenant cases on NYSCEF. Petitioner Counsel merely could have filed a Notice of Discontinuance on April 25, 2022 after Respondent Counsel notified him about the false and defective filed papers. Respondent Counsel on April 25th fulfilled her ethical professional duty to inform Petitioner Counsel of the error riddled summary holdover proceeding in an attempt to avert any further unnecessary expenditure of time and resources by her client upon an obviously frivolous action. Petitioner Counsel refused to respond, which did exactly that, imposed unnecessary legal fees upon Respondent by forcing Respondent Counsel to fulfill her professional ethical mandate to protect her client's interest by further expending the time and resources to Answer and Counterclaim the obviously incurably flawed defective summary holdover proceeding. It was not until after Respondent Counsel filed Answer and Counterclaim on May 9, 2022, that Petitioner Counsel finally called her with mere non-specific nebulous and short shrift casual mention of settlement discussions full-well knowing that proceeding was incurably defective. It is at this point that his conduct further intensified to malice entirely motivated by a disinterested malevolence or bad faith to cause Respondent to incur legal fees sufficient to overrule the common law American Rule. There was no redeeming value to Petitioner Counsel beyond disinterested malevolence and bad faith to continue this frivolous action with the intent to force legal fees upon Respondent. Although this type of conduct can also trigger a claim for Commercial Landlord Tenant Harassment, it is in the filing of more than one frivolous case that's required, which Petitioner Counsel is strongly urged to not do. Moreover, it is Petitioner Counsel's conduct in so flouting the legal procedural rules of court that resulted in a waste of judicial resources particularly as the court was attempting to move out of the Pandemic Moratorium. Quite flippantly in the email chain proffered by Petitioner Counsel as Exhibit E of his affirmation, he stated quite matter-of-factly at 9:32AM on May 11, 2022 the very morning of the appearance during the court's calendar call: "I will not appear. I will let it be dismissed. I will refile." Firstly, Petitioner Counsel did not have the authority in which to "let it be dismissed" (id.). The jurisdictional discretion to dismiss a matter lies solely with the presiding jurist. Furthermore, where a case is to be dismissed with intentional non-appearance by either party allows within the jurist's exercise of discretion to impose various caveats upon said dismissal, which was done here upon application by appearing Respondent Counsel. Intentional non-appearance at his own peril by Respondent Counsel signified he assumed the risk of any and all outcomes deriving therefrom. The adjournment to May 11, 2022, with an extension of time to file an Answer and retain counsel was a judicial decision and order and not a mere pro forma clerical suggestion to be ignored by neither counsel. Although not rising to such level here, ignoring court's order to appear in and of itself may indeed trigger the court's inherent contempt powers. Arguendo, were Respondent Counsel to have not Answered and not appeared on May 11th based upon Petitioner Counsel's pronouncements then it would have been at her own peril jeopardizing her client's position in failing to comply with court's previous decision and order to its benefit. Inapposite to Petitioner Counsel's argument that it was of no moment whether he had appeared or not since the case was ultimately dismissed and that there was no real damage and, but minimal waste of judicial resources, This Court most stridently disagrees. There is no de minimis intentional waste of judicial resources by officers of the court that will be so endorsed without admonitions with consequences thereto, particularly at a time such as this where the court is easing out of attenuated Pandemic protocols and procedures. Even if both parties had not appeared on May 11, 2022, This Court in recognizing and so acknowledging the ecumenical economic trauma inflicted upon landlords and tenants alike during the Pandemic, affords much latitude to litigants in the commercial landlord tenant jurisdiction, where engaging in good faith ethical litigation tactics.
See n 1, supra.
It is opined that Petitioner Counsel's conduct although not rising to the level for Contempt of Court pursuant to Judiciary Law § 753, nor being sufficiently repetitious for a claim of Commercial Landlord Tenant Harassment pursuant to NYC Admin. Code 22-902, 903 (3) his conduct did escalate to the level of malevolent malicious acts and the acts themselves have been entirely motivated by a disinterested malevolence to the detriment of the Respondent as an exception to the common law American Rule . Further, his conduct is frivolous as: it was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; it was undertaken primarily to delay or prolong the resolution of the incurably defective summary holdover proceeding, to harass and maliciously injure Respondent; it asserts material factual statements that are false as to the proper landlord or owner in violation of 22 NYCRR 130 -1.1 (c) to force Respondent to incur unnecessary expenditure of legal fees. Thus, judgment for attorney fees granted May 11, 2022, shall be upheld accordingly. However, Respondent Counsel in and for its prayer for relief in Answer and Counterclaim's wherefore clause specifically prayed for the amount of $2,500.00 for attorney fees. Accordingly, This Court will not allow windfall to Respondent Counsel and will limit attorney fees to the amount prayed for in wherefore clause of $2,500.00. Therefore, judgment in the amount of $4,736.50 awarded May 11, 2022 is vacated and judgment in the amount of $2,500 plus interest from date of May 11, 2022 is hereby granted.
Respondent Counsel argues that pursuant to Essebag, awarding of attorney fees is premature where the case may be refiled since not the conclusion of the case (Park S. Assocs. v Essebag, 113 Misc.2d 1026, affd 126 Misc.2d 994 [1982]). However, this case cannot be refiled because this case is ab initio a nullity as frivolous since being brought by party without standing against party to which there is no privity of contract or lease to support a summary holdover proceeding. Therefore, this instant case is concluded as a finality and cannot be refiled.
For the foregoing reasons, Petitioner's Order to Show Cause to Vacate Judgment in the amount of $4,736.50 for Attorney's Fees is in part hereby GRANTED, and Judgment vacated. ORDERED; Judgment in the amount of $2,500.00 for Attorney's Fees with interest from May 11, 2022, is hereby GRANTED.
This constitutes the opinion, decision, and order of This Honorable Court.
SO ORDERED.