Opinion
3241-06.
April 28, 2008.
The following papers having been read on this motion:
1, 2, 3, 4, 5 6, 7, 8, 9 10, 11
Notice of Motion, Affidavits, Exhibits........ Answering Affidavits............................ Replying Affidavits............................. Briefs: Plaintiff's / Petitioner's ............. Defendant's / Respondent's......................The defendants move, under Motion Sequence Number 4, for an order striking the plaintiff's complaint, and entering a default judgment. The plaintiff opposes this motion by the defendants.
The plaintiff moves, under Motion Sequence Number 5, for an order pursuant to CPLR 2304 granting the plaintiff's motion to quash the judicial subpoena dated December 21, 2007, served upon John A. Ardito, Esq., and granting the plaintiff's motion for a protective order pursuant to CPLR 3103 (a) as the judicial subpoena dated December 21, 2007, served upon John A. Ardito, Esq. The defendants oppose this motion by the plaintiff. The plaintiff replies to that opposition, and further supports this motion.
The defendants cross move, under Motion Sequence Number 6, for an order pursuant to CPLR 3212 granting them summary judgment, and granting them a money judgment in the amount of $67,847.00, striking the complaint, and granting them judgment in the amount of $67,847.00. The plaintiff opposes this cross motion by the defendants.
The plaintiff cross moves, under Motion Sequence Number 7, for an order pursuant to CPLR 3126 striking the verified answer of the defendants for refusing to respond to the discovery orders of this Court, and sanctioning the defendants for willfully and contumaciously causing the plaintiff to endure lengthy delays in obtaining necessary discovery, and for an order pursuant to CPLR 3124 compelling the disclosure requested by the plaintiff. The defendants oppose this cross motion by the plaintiff.
The plaintiff and the third party defendants John A. Ardito and Ardito Ardito, LLP move, by an amended order to show cause, under Motion Sequence Number 9, for an order pursuant to CPLR 3211 (a) (7), an order pursuant to 22 NYCRR § 130-1.1 assessing costs, sanctions and attorneys' fees for frivolous conduct against the plaintiff, and the proposed third party defendants John A. Ardito and Ardito Ardito, LLP, an order preserving the rights of the third party defendants to file a cause of action for abuse of process, an order pursuant to CPLR 2201 staying this action pending the resolution of the instant amended order to show cause in light of the plaintiff's inability to complete discovery, especially the deposition of the defendants Clay N. Viemeister and Landscapes by Clay, Inc. due to the inclusion of third party defendants as parties in the within action, and for an order extending the time in which responsive pleadings may be served by the third party defendants pending the determination of this motion. The defendant and third party plaintiff's oppose this motion.
This Court has carefully reviewed and considered all of the parties' papers submitted with respect to these motions and cross motions. Under this contract action, the plaintiff claims the defendants failed to perform landscaping and installation at 225 Route 106, Muttontown, New York. The defendants counterclaim alleging breach of contract, and demand $67,847.00 as a balance due the defendants from the plaintiff for landscaping work performed on behalf of the plaintiff. The defendants also filed a third party summons and complaint against the plaintiff's attorney and law firm.
With regard to Motion Sequence Number 4, the defendants contend, in the defense attorney's supporting affirmation dated September 26, 2007, the plaintiff's complaint must be stricken because the plaintiff has refused to produce any witness for a deposition in this matter in violation of the Court's March 13, 2007 preliminary conference order directing all parties were to be deposed on June 6, 2007. The plaintiff's attorney responds, in an opposing affirmation dated January 31, 2008, significant discovery has been accomplished since May 10, 2007, including the depositions of several nonparty witnesses, the plaintiff physician and the defendant Patricia Hopkins, but the defendant Clay N. Viemeister as of January 31, 2008, is the only party yet to be deposed. The plaintiff's attorney asserts the plaintiff has provided the defendants with all of the requested discovery. The Court finds, based upon the submissions on Motion Sequence Number 4, this motion is now moot, and the plaintiff's conduct has not been shown, with respect to this motion to have been deliberate nor contumacious.
With regard to Motion Sequence Number 5, the plaintiff's attorney notes, in a supporting affirmation dated January 7, 2008, the defendants filed a motion seeking to disqualify plaintiff's counsel and plaintiff's law firm as attorneys for the plaintiff pursuant to DR 5-102 (b) and 22 NYCRR § 1200.21 (b) pursuant to the New York Code of Professional Responsibility. The plaintiff's attorney points out this Court denied that motion on May 10, 2007, and on December 21, 2007, the defendants served this affirmant with a judicial subpoena to take a nonparty witness deposition claiming the testimony will relate to all of the relevant facts and circumstances concerning the services, work, and landscaping provided by the defendants at 659 Franklin Avenue, Franklin Square, in Nassau County. The plaintiff's attorney avers the information sought is irrelevant since the defendants never performed work at that address which is the location of the affirmant's law office. The plaintiff's attorney asserts the defendants have failed, in an attempt to secure these nonparty witnesses' testimony, to show special circumstances; the possibility of discovering the information from other sources; or the necessity for the information in trial preparation. The plaintiff's attorney contends a protective order for John A. Ardito and Ardito Ardito, LLP is necessary since expert witnesses have already been deposed along with some of the parties. The plaintiff's attorney maintains this judicial subpoena is a fishing expedition for the sole purpose of harassing and disqualifying John A. Ardito and Ardito Ardito, LLP from the instant matter, and prejudicing the plaintiff's prosecution of it. The defense counsel states, in an affirmation dated January 30, 2008, in support of Motion Sequence Number 6, and in opposition to the plaintiff's motion to quash the judicial subpoena and for a protective order, and in support of the defendant's cross motion for summary judgment and to strike the complaint, and enter judgment in favor of the defendants, as well as in a reply affirmation dated February 4, 2008, the plaintiff's attorney does not deny acting as a project supervisor on this landscape project at 225 Route 106, Muttontown, New York, and failed to disclosed that circumstance to the Court on the previous application to disqualify the plaintiff's counsel. The defense counsel asserts the plaintiff attorney's position and relationship to the landscape project is relevant to the defense regarding its performance and workmanlike manner pursuant to the requirements of the Village of Muttontown. The plaintiff's attorney reiterates, in detail, in a reply affirmation dated January 31, 2008, the assertions from the prior supporting affirmation to this motion, and pointing out this affirmant performed only ministerial acts in coordinating and filing certain permits and applications with Village of Muttontown.
The Court finds, based upon the submissions on Motion Sequence Number 5, this motion is granted. CPLR 2304 provides: "[a] motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable." The Second Department has ruled the motion Court acts properly to quash subpoenas where the information sought is irrelevant, or where the party seeking to information fails to establish that the information sought to be discovered from a nonparty could not be obtained from other sources ( Hamilton v. Touseull , 852 N.Y.S.2d 244, 48 A.D.3d 520 [2nd Dept, 2008]; Golden Mark Maintenance, Ltd. v. Alarcon , 265 A.D.2d 377, 696 N.Y.S.2d 515 [2nd Dept, 1999]). Here, the defense has failed to meet its burden. "A party seeking discovery from a nonparty witness must show special circumstances. The existence of such special circumstances is not established merely upon a showing that the information sought is relevant. Rather, special circumstances are shown by establishing that the information sought cannot be obtained from other sources [citations omitted]" (Lanzello v. Lakritz, 287 A.D.2d 601, 731 N.Y.S.2d 763 [2nd Dept, 2001]. CPLR 3103 (a) provides:
The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
The Court determines the plaintiff's attorney has shown a protective order quashing the subpoena served is required, so the Court grants that relief.
With regard to Motion Sequence Number 6, the defense counsel states, in a supporting affirmation dated January 30, 2008, in opposition to the plaintiff's motion to quash the judicial subpoena and for a protective order, and in support of the defendant's cross motion for summary judgment and to strike the complaint, and enter judgment in favor of the defendants, there is no issue of fact that the plaintiff owes the defendants $67,847.00 for landscape construction under the parties' contract. The defense counsel contends the plaintiff prevented the defendants from honoring the guarantee by failing to pay the final bill when due in July 2006, and by preventing the defendants from returning to the premises. The defense counsel asserts the complaint should be stricken, and judgment entered in favor of the defendants on the counterclaim because plaintiff's counsel continued to interrupt the deposition of the plaintiff in violation of Court Rule 221. The defense counsel avers the plaintiff, as of January 30, 2008, refused to provide any records in connection with the amount paid to plaintiff's counsel to be project manager to oversee the landscape design. The defense counsel points to deposition testimony, including interruptions by plaintiff's counsel, to support these assertions. The defense counsel maintains the plaintiff attorney's conduct was obstreperous, so the relief sought should be granted together with sanction under Court Rule 221. The defendant Clay N. Viemeister, a principal of Landscapes by Clay, Inc. reiterates the assertions of defense counsel in an affidavit dated January 30, 2008. The plaintiff's attorney states, in an opposing affirmation dated January 31, 2008, to Motion Sequence Number 6, the defense opposition to the plaintiff's motion, to wit Motion Sequence Number 5 was untimely under the parties' stipulation dated January 23, 2008, and CPLR 2104. The plaintiff's attorney points out, in detail, the defense cross judgment for summary judgment should be denied because it is based upon the conclusory allegations of defense counsel and the defendant Clay N. Viemeister claiming all work performed pursuant to the agreement was done in a workmanlike manner. The plaintiff's attorney points to the plaintiff's affidavit dated February 4, 2008, which shows, in detail, the agreement specified installment payments premised upon the completion of the work, and the dispute about the quality of the work performed at the plaintiff's home, and the money withheld because of a breach in the agreement.
The Court finds, based upon the submissions on Motion Sequence Number 6, this motion is denied. Under CPLR 3212(b), a motion for summary judgment "shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 325; Andre v. Pomeroy , 35 N.Y.2d 361). Summary judgment is the procedural equivalent of a trial ( Museums at Stony Brook v. Village of Patchogue Fire Dept. , 146 A.D. 2d 572). Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law ( see, Whelen v. G.T.E. Sylvania Inc. , 182 A.D. 2d 446). The court's role is issue finding rather than issue determination ( see, e.g., Sillman v. Twentieth Century-Fox Film Corp. , 3 N.Y.2d 395; Gervasio v. Di Napoli , 134 A.D.2d 235, 236; Assing v. United Rubber Supply Co. , 126 A.D.2d 590). Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" ( Gervasio v. Di Napoli, supra , 134 A.D.2d at 236, quoting from Assing v. United Rubber Supply Co., supra; see, Columbus Trust Co. v. Campolo , 110 A.D.2d 616 , aff'd 66 N.Y.2d 701). If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided ( see, Andre v. Pomeroy , 35 N.Y.2d at 364; Assing v. United Rubber Supply Co., supra. ) The defendants have not met their burden on this motion for summary judgment. The Court finds there are issues of fact which require resolution by the trier of fact. It is well settled that the harsh remedy of striking a pleading should not be employed without a clear showing of deliberate and willful refusal to disclose ( see, Washington v. Alco Auto Sales , 199 A.D.2d 1650). The penalty to be imposed for such a refusal or failure is a matter within the sound discretion of the court. The burden of establishing that a failure or refusal to disclose was the result of willful, deliberate, and contumacious conduct rests with the party seeking preclusion ( see, Ahroni v. City of New York , 175 A.D.2d 789). The Court also finds the defendants have failed to meet their burden with respect to granting them a money judgment in the amount of $67,847.00, striking the complaint, and granting them judgment in the amount of $67,847.00.
With regard to Motion Sequence Number 7, the plaintiff's attorney notes, in a supporting affirmation dated January 31, 2008, despite numerous court orders and conferences, the defendants have yet to produce the defendant Clay N. Viemeister for an examination before trial, and points out more than nine months have elapsed since the Court issued a preliminary conference order, and nearly seven months have passed since the date proscribed for depositions within the order. The plaintiff's attorney asserts the defense counsel served the plaintiff's counsel with a judicial subpoena for a nonparty witness, and the plaintiff's counsel filed a motion to quash that subpoena, to wit Motion Sequence Number 5. The plaintiff's attorney avers the defense failure to comply with this Court's directives have greatly hindered the plaintiff's chances to adequately and expeditiously conduct discovery. The plaintiff's attorney states the defendants have yet to appropriately respond to the plaintiff's notice for discovery and inspection dated January 8, 2008, and those items are necessary, and must be provided to the plaintiff on or prior to February 5, 2008, the return date of the instant motion. The plaintiff's attorney requests the Court strike the verified answer pursuant to CPLR 3126, or in the alternative a monetary sanction is required because the defendants' conduct is willful and contumacious, and the plaintiff has endured lengthy delays, and repeatedly forced to seek judicial intervention to secure the discovery of items to which the plaintiff is entitled. The defense counsel states, in an affirmation dated February 4, 2008, in opposition to Motion Sequence Number 7, the plaintiff and plaintiff's attorney should be sanctioned for this frivolous motion. The defense counsel claims the defendant Clay N. Viemeister appeared on December 18, 2007, at the courthouse for an examination before trial by the plaintiff, but the plaintiff's counsel, at that time, indicated he was not prepared to depose the defendant Clay N. Viemeister. The defense counsel states, since December 18, 2007, the plaintiff has never requested the defendant Clay N. Viemeister appear at a deposition, and the plaintiff has failed to identify one date he requested the defendant Clay N. Viemeister to appear nor that the defendant Clay N. Viemeister willfully refused to appear. The defense counsel asserts the defendants complied with the discovery and inspection dated January 8, 2008, because the plaintiff's attorney was personally served on January 31, 2008, with the defendants' responses to the discovery and inspection. The defense counsel avers, according to the preliminary conference order, the plaintiff was required to serve the request for discovery and inspection by April 1, 2007, not January 8, 2008, and the defense did not object to the late service, but responded to the demand for discovery and inspection dated January 8, 2008. The defense counsel notes the plaintiff refused to appear at the deposition until the defendants were forced to file a motion to compel. The defense counsel contends it appears the plaintiff by filing this motion is emulating the defense without the benefit of the true facts, to wit the defendant Clay N. Viemeister appeared, and has always been willing to appear for a deposition.
Again, it is well settled that the harsh remedy of striking a pleading should not be employed without a clear showing of deliberate and willful refusal to disclose ( see, Washington v. Alco Auto Sales , 199 A.D.2d 1650). The penalty to be imposed for such a refusal or failure is a matter within the sound discretion of the court. The burden of establishing that a failure or refusal to disclose was the result of willful, deliberate, and contumacious conduct rests with the party seeking preclusion ( see, Ahroniv. Cityof New York , 175 A.D.2d 789). The Court finds the plaintiff has failed to meet that burden with respect to Motion Sequence Number 7, so the motion is denied in all respects.
With regard to Motion Sequence Number 9, the plaintiff's attorney states, in a supporting affidavit dated March 18, 2008, since the plaintiff has absolutely no recourse against the third party defendants, it is clear the third party plaintiff cannot seek indemnification against the third party defendants. The plaintiff's attorney states the plaintiff never hired nor retained the third party defendants to act as a project supervisor or project manager for the work performed at the plaintiff's residence which gave rise to the instant action. The plaintiff's attorney states the plaintiff never allowed nor permitted the third party defendants to perform landscape design or construction at the plaintiff's residence, however all such defective work was performed by the defendants, their subcontractors, agents and servants according to the agreement between the plaintiff and the defendants. The plaintiff's attorney states the plaintiff has no connection with the third party defendants other than an attorney client relationship, and engaged by the plaintiff to assist in applying for and obtaining permits for that work. The plaintiff's attorney notes the third party defendant were also retained by the plaintiff after the plaintiff decided the defendants' work was performed deficiently, and at the time the balance due and owing was demanded by the defendants. The plaintiff's attorney concedes, at that time, the third party defendant visited the premises, observed the apparent defective workmanship at the premises, and began explaining to the defendants the balance due and owing to the defendants would not be paid due to the unworkmanlike conditions at the premises. The plaintiff's attorney, in a detailed recitation of the history of the litigation and the costs and attorneys' fees, avers the defendants and their counsel have made repeated attempts to harass and now impose liability on the plaintiff's counsel, to wit the third party defendants, and that conduct is frivolous, and sanctionable. The plaintiff's attorney contends a cause of action for abuse of process is warranted here, and points out, as a result of the conduct of the defendants and the defense counsel, the depositions of the defendants Clay N. Viemeister and Landscapes by Clay, Inc. cannot be conducted by any of the now named third party defendants because they are parties to the action, so the plaintiff requests, depending upon the outcome of this instant motion, a stay to preserve the plaintiff's ability to complete all outstanding discovery, including the deposition of the defendants, and to allow the plaintiff, if necessary, time to find new counsel.
The plaintiff reiterates, in an affidavit dated March 14, 2008, in support of Motion Sequence Number 9, the assertions made by the plaintiff's attorney, to wit the third party defendant, in plaintiff counsel's supporting affidavit dated March 18, 2008. The plaintiff repeats the contentions made in the plaintiff's affidavit dated February 4, 2008, which shows, in detail, the agreement specified installment payments premised upon the completion of the work, and the dispute about the quality of the work performed at the plaintiff's home, and the money withheld because of a breach in the agreement. The plaintiff adds a detailed recitation of the history of the litigation and the costs and attorneys' fees, too.
The defense counsel states, in an opposing affirmation dated April 15, 2008, to Motion Sequence Number 9, the plaintiff's application should be denied, and explains the third party complaint seeks contribution for damages for the injury to the plaintiff's property. The defense counsel states the instant motion must be denied as defective because the third party defendants failed to attach a complete copy of the third party complaint with exhibits to the instant order to show cause. The defense counsel alleges the third party complaint pleads an action against the third party defendants under CPLR 1401, and under the first cause of action of the plaintiff's complaint, specifically paragraph 20, the plaintiff alleges a negligence cause of action which caused injury to the plaintiff's property. The defense counsel contends the third party action is for liability and damages for the same injury to property of the plaintiff, hence the third party action seeks contributions under CPLR 1401 for damages to the plaintiff's property, so this motion seeking relief under CPLR 3211 (a) (7) must be denied. The defense counsel asserts, in view of CPLR 1401 permitting an action for contribution for damages to property, the third party defendants' motion for sanctions must be denied. The defense counsel notes the standard to disqualify the third party defendants as a possible witness is different than the standard to commence an action under CPLR 1401. The defense counsel alleges, as to the settlement negotiations, he did not informed the plaintiff's attorney the defendants are landscaping the defense counsel's house, and the defendants have not performed any landscaping services in consideration of legal fees. The defense counsel claims the plaintiff attorney's request for sanctions is unnecessary and unreasonable.
The plaintiff's attorney states, in a supplemental affirmation dated April 14,2008, in reply and further support of Motion Sequence Number 9, the defense claims, based upon the third party defendants' failure to obtain the proper governmental approvals and proper permits for the landscape project performed at 225 Route 106, Muttontown, New York, are false and frivolous. The plaintiff's attorney points to the over 400 pages of deposition testimony of the defendant Patricia Hopkins, and states it demonstrates Hopkins was retained as a landscape designer and a consultant by the plaintiff, spent time at the subject premises during the approximately 15 visits there during the construction phase of the project. The plaintiff's attorney notes Hopkins was expected to perform pursuant to a consulting agreement with the plaintiff, and in fact Hopkins explains the consulting services consisted of site visits, a request from the plaintiff for telephone calls to various people working on the subject project, Hopkins' attendance at meetings requested by the plaintiff, and to be at the plaintiff's disposal for any questions or concerns the plaintiff might have during the project. The plaintiff's attorney make a point that Hopkins was directly responsible for referring the subcontractor, Hildebran Landscaping, to perform lawn seeding for the plaintiff, and Hopkins referred the defendant Landscapes by Clay, Inc. to the plaintiff in order to accomplish the installation of Hopkins' design. The plaintiff's attorney observes Hopkins received a finder's fee of approximately $5,000.00 from Clay N. Viemeister for this referral. Hopkins also testified, although the defendants and third party plaintiff's Clay N. Viemeister and Landscapes by Clay, Inc. were responsible for the work performed at the subject premises, another entity or individual coordinated the work at the premises, and that other entity or individual was not the third party defendants. The plaintiff's attorney asserts it is clear the allegations set forth in the third party summons and complaint are in direct conflict with Hopkins' testimony, to wit the third party defendants were not responsible for any of the work performed at the subject premises, they were not in charge of coordinating the work to be performed there, and they did not have the function of conveying any suggestions, comments nor complaints to the contractor, the agents or employees of the contractor, or the subcontractors. The plaintiff's attorney remarks Hopkins submitted invoices to the plaintiff for the services allegedly rendered by Hopkins for time spent consulting on the subject projects at all phases exceeding 80 hours.
The defense counsel states, in the affirmation dated April 15, 2008, addressing Motion Sequence Number 9, the plaintiff attorney's assertions regarding CPLR 3211 (a) (7) are inapposite because the third party action states a cause of action under CPLR 1401 for contributions from the plaintiff's attorney and law firm. The defense counsel states an order pursuant to 22 NYCRR § 130-1.1 assessing costs, sanctions and attorneys' fees for frivolous conduct by the defendants and defense counsel is unnecessary and unreasonable. The defense counsel contends Motion Sequence Number 9 must be denied in all respects. CPLR 3211 (a) (7) provides: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: the pleading fails to state a cause of action." The Appellate Division holds:
"[i]n the posture of defendants' CPLR 3211 motion to dismiss, our task is to determine whether plaintiffs' pleadings state a cause of action. The motion must be denied if from the pleadings' four corners 'factual allegations are discerned which taken together manifest any cause of action cognizable at law'" ( 511 West 232nd Owners Corp. v. Jennifer Realty Corp. , 98 N. Y.2d 144, 151-152, 746 N.Y.S.2d 131, 773 N.E.2d 496 [cite omitted]). We must construe the complaint liberally, and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion, and accord plaintiff's the benefit of every possible favorable inference ( id. at 152, 746 N.Y.S.2d 131, 773 N.E.2d 496)
Richbell Information Services, Inc., et al. v. Jupiter Partners, LP, et al. , 309 A.D.2d 288, 289, 765 N.Y.S.2d 575 [1st Dept., 2003]). The indicia here of a relationship as alleged by the third party plaintiff's is nexus, however the sworn statements and testimony make it clear there is none as contended by the third party plaintiff's rather it appears the third party defendants are only the attorneys for the plaintiff. This Court concludes, with respect to the third party complaint, the third party plaintiff's fail to allege any facts in the complaint and in any submissions in opposition to the dismissal motion that even suggest the plaintiff hired or retained the third party defendants to act as project supervisor or project manager for the work performed at the plaintiff's residence which gave rise to the action commenced by the plaintiff, so contribution is inapposite here. 22 NYCRR § 130-1.1 (a) provides:
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.
Under 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.
This Court has considered "(1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) 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" (see 22 NYCRR § 130-1.1 [c]. The Court takes notice of the court order May 10, 2007, almost a year before the commencement of the third party action. The defendants' and third party plaintiffs' conduct is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law. The defendants' and third party plaintiffs' conduct was undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure the plaintiff and plaintiff's counsel. The defendants' and third party plaintiffs' conduct asserts material factual statements that are false. This Court finds the defendants' and third party plaintiffs' conduct was frivolous as set forth in 22 NYCRR § 130-1.1.
Accordingly, Motion Sequence Number 4 is denied in all respects, Motion Sequence Number 5 is granted in all respects, Motion Sequence Number 6 is denied in all respects, Motion Sequence Number 7 is denied in all respects.
Motion Sequence Number 9 is granted only to the extent of directing a hearing to determine appropriate costs in the form of attorney's fees to be awarded to the plaintiff and third-party defendants, and sanctions to be imposed on the plaintiff and his attorney for frivolous conduct for bringing a frivolous motion. This matter is referred to the Calendar Control Part, for that hearing pursuant to 22 NYCRR § 130-1.1 to determine appropriate costs in the form of attorney's fees to be awarded to the defendants, and sanctions to be imposed on the plaintiff and his attorney for frivolous conduct for bringing a frivolous motion. The plaintiff shall file and serve a Note of Issue, together with a copy of this Order, on all parties and shall serve copies of same, together with receipt of payment, upon the Calendar Clerk of this Court to place the hearing down for May 28, 2008, at 9:30 a.m. The directive with respect to a hearing is subject to the right of the Justice presiding in Calendar Control Part to refer the matter to a Justice, Judicial Hearing Officer, or a Court Attorney/Referee, as Justice presiding in Calendar Control Part deems appropriate.
So ordered.