Opinion
Index No. 259/2021
05-02-2022
Nolan SANTALIZ, Petitioner, v. OR FM ASSOCIATES and HPD, Respondents.
For Petitioner: Joanne Laine For Respondent OR FM Associates: Felipe Orner For Respondent HPD: Paul Gdanski
For Petitioner: Joanne Laine
For Respondent OR FM Associates: Felipe Orner
For Respondent HPD: Paul Gdanski
Jack Stoller, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Pages numbered
Notice of Cross-Motion (motion sequence No.6) and Supplemental Affidavit Annexed 1, 2
This cross-motion was made in response to a motion to quash that the Court had ruled on in a previous order.
Notice of Cross-Motion (motion sequence #7) and Supplemental Affirmation Annexed 3, 4
Affirmation In Opposition and in Reply 5
Affirmation In Reply 6
Affirmation In Support of Motion Sequence #3 7
The Court considers this affirmation because its allegations comprise the basis for Respondents’ sanctions motion.
Upon the foregoing papers, the Decision and Order on this motion are as follows:
Nolan Santaliz, the petitioner in this proceeding ("Petitioner"), commenced this proceeding against OR FM Associates and Tzifil Realty Corp., the respondents in this proceeding ("Respondent"), and the Department of Housing Preservation and Development of the City of New York ("HPD"), seeking a judgment on a cause of action sounding in harassment and an order to correct violations of the New York City Housing Maintenance Code at 922 East 15th Street, Apt. 2C, Brooklyn, New York ("the subject premises"). The Court has already rendered a judgment on Petitioner's causes of action after trial. Before the trial, HPD had moved to quash a subpoena that Respondent had served upon HPD ("Respondent's Subpoena"). Respondent and HPD now move and cross-move for sanctions against one another.
Given the months-long submission schedule on this motion practice that enabled the parties to fully develop and respond to various arguments, the extensive record developed on this motion practice, and the absence of material fact disputes, the Court does not require an evidentiary hearing to render a determination on the two sanctions motions. Minister, Elders & Deacons of Reformed Protestant Dutch Church v. 198 Broadway, Inc. , 76 N.Y.2d 411, 413 n.1, 559 N.Y.S.2d 866, 559 N.E.2d 429 (1990), Caro v. Marsh USA, Inc. , 101 A.D.3d 1068, 1069, 956 N.Y.S.2d 575 (2nd Dept. 2012), leave to appeal dismissed , 21 N.Y.3d 1068, 974 N.Y.S.2d 314, 997 N.E.2d 139 (2013), Jalor Color Graphics v. Universal Adver. Sys. , 193 Misc 2d 76, 77, 749 N.Y.S.2d 816 (App. Term 1st Dept. 2002), aff'd , 2 AD2d 65 (1st Dept. 2003), First Deposit Nat'l Bank v. Van Allen , 277 A.D.2d 858, 861, 716 N.Y.S.2d 815 (3rd Dept. 2000), Gordon v. Marrone , 202 A.D.2d 104, 111, 616 N.Y.S.2d 98 (2nd Dept. 1994), In re Estate of Marsh , 207 A.D.2d 749, 616 N.Y.S.2d 962 (1st Dept. 1994).
Respondent's sanctions motion against HPD
Respondent's cross-motion for sanctions was in direct response to HPD's motion to quash Respondent's Subpoena ("HPD's Quash Motion"). The Court has already ruled on HPD's Quash Motion by an order dated December 23, 2021. The Court denied HPD's Quash Motion with regard to the production of tenant complaints, finding that this demand was not overbroad or burdensome and did not seek production of privileged or irrelevant material. The Court also denied HPD's Quash Motion with regard to a subpoena ad testificandum, based on legal authority that the right to serve a subpoena ad testificandum is absolute, distinguishing authority that HPD had cited to the contrary. The Court granted HPD's Quash Motion to the extent that Respondent's Subpoena constituted an overbroad fishing expedition and granted HPD's Quash Motion to the extent that Respondent's Subpoena sought production of training materials, based in particular on apposite authority.
Respondent argues that HPD predicated HPD's Quash Motion on authority that was inapposite, outdated, and from a different appellate department than the Second Department. Respondent's argument relies heavily on the proposition that a subpoena can be quashed if it seeks production of materials that are "utterly irrelevant" and that HPD's citation of other authority for other propositions does not accurately reflect the state of the law. However, subpoenas can be quashed for other reasons, such as when trials subpoenas are used to ascertain the existence of evidence, In re Terry D. , 81 N.Y.2d 1042, 1044, 601 N.Y.S.2d 452, 619 N.E.2d 389 (1993), Capacity Grp. of NY, LLC v. Duni , 186 A.D.3d 1482, 1484 (2nd Dept. 2020) or overbreadth, Bour v. 259 Bleecker LLC , 104 A.D.3d 454, 455, 961 N.Y.S.2d 98 (1st Dept. 2013). The Court in fact granted HPD's motion in part on this ground.
A motion is "frivolous" for purposes of sanctions if, inter alia , it is "completely without merit in law or fact" and "cannot be supported by a[ny] reasonable argument for an extension, modification or reversal of existing law." 22 N.Y.C.R.R. § 130-1.1(c)(1), Minister, Elders & Deacons of Reformed Protestant Dutch Church , supra , 76 N.Y.2d at 414, 559 N.Y.S.2d 866, 559 N.E.2d 429. While HPD's argument did not prevail with regard to some aspects of Respondent's Subpoena, HPD made reasonable arguments with regard to overbreadth, relevance, a burden on HPD, and the diversion of resources from HPD's core mission. HPD acknowledged the broad leeway applying to subpoenas ad testificandum but in essence argued for an extension of the law given HPD's specialized mission. The Court shall deem "clearly meritless" arguments as frivolous, Bavers v. Shepherd , 189 A.D.3d 606, 610 (1st Dept. 2020), but that means that sanctions are inappropriate where a party asserts colorable, albeit unpersuasive, arguments in good faith and without an intent to harass or injure, Gordon Group Invs., LLC v. Kugler , 127 A.D.3d 592, 594-595 (1st Dept 2015), even "somewhat colorable" argument when not made in bad faith or for improper purposes, Matter of L & M Bus Corp. v. N.Y.C. Dep't of Educ. , 83 A.D.3d 432, 433, 920 N.Y.S.2d 331 (1st Dept. 2011), and even if, arguendo , an argument lacks support in authority. See , e.g. , Ramirez v. 3690 Jad Food Corp. , 2016 N.Y. Slip Op. 33105(U)( S. Ct. Bronx Co.), Judicial Settlement of Account of Paul E. Brody , 59 Misc 3d 1215(A)( Sur. Ct. Queens Co. 2015). HPD's arguments easily cleared this standard. Accordingly, the Court denies Respondent's motion for sanctions against HPD.
HPD's sanctions motion against Respondent
HPD's motion for sanctions against Respondent more accurately is a motion for sanctions against Felipe Orner, who is both the attorney of record for Respondent and Respondent's registered managing agent ("Respondent's counsel"). The context of the underlying proceedings helps to clarify the motion for sanctions against Respondent's counsel.
Petitioner commenced this proceeding on or about March 31, 2021. The petition was noticed to be heard on May 6, 2021. After a referral from the trial expediter, the Court held a pretrial conference of this matter on October 21, 2021. A matter referred to a trial part of Housing Court is presumed to be trial-ready. See DRP-150A. While the Court cannot commence with a trial on the day of the pretrial conference, 11-15 Montrose Ave. Tenant Ass'n v. 11-15 Montrose Ave. Housing Dev. Fund Corp. , 72 Misc 3d 1210(A)( Civ. Ct. Kings Co. 2021), in theory there is no reason that the trial part cannot calendar a trial relatively expeditiously after the pretrial conference. Moreover, Court rules mandate that trials in matters such as this one should go to trial within fifteen days of joinder of issue. 22 N.Y.C.R.R. § 208.43(g). The practical reality of the trial part's busy calendar often precludes a trial on that time scale, however, and as it happened the Court in this matter did not have an available date until four weeks after the pretrial conference. Accordingly, on October 21, 2021, the Court calendared the matter for trial to Friday, November 19, 2021 and then, in deference to Respondent's counsel's request for an accommodation of his Sabbath observance, calendared the matter for trial on Monday, November 22, 2021.
See Gdanski Aff. In Support, Exhibit K, NYSCEF #106.
See Gdanski Aff. In Support, Exhibit M, NYSCEF #108.
DRP-150A can be found here: https://www.nycourts.gov/COURTS/nyc/SSI/directives/DRP/drp150A.pdf
See footnote 4, supra.
Respondent's counsel objected to the Court's calendaring of the trial on a time frame of four weeks after the Court held a pretrial conference of this matter, asserting that he needed more time than that to review subpoenaed materials from HPD prior to the trial. As this proceeding is a special proceeding, however, Respondent was not entitled to discovery. CPLR § 408. While Respondent could have (and did) serve a subpoena on HPD, that subpoena would not have been a discovery subpoena, but a trial subpoena, which Respondent was only entitled to review on the trial date, not before. People ex rel. Hickox v. Hickox , 64 A.D.2d 412, 413-14, 410 N.Y.S.2d 81 (1st Dept. 1978). Accordingly, Respondent's counsel's insistence that four weeks was too soon to calendar a trial had no support or merit. Be that as it may, Respondent's counsel's reaction on the record on October 21, 2021 was to act disruptive, at one point shouting "this is ridiculous!", to the point that the Court muted him in the virtual Court appearance.
See Gdanski Aff. In Support, Exhibit H, NYSCEF #103 at 5 of 8.
Even though Respondent's counsel had four weeks to serve Respondent's subpoena on HPD, as he had discussed on October 21, 2021, and even though most of the materials Respondent's counsel sought production of existed before October 21, 2021, Respondent's counsel waited until November 16, 2021, six days before the trial, to submit Respondent's subpoena to be so-ordered. And even then, Respondent's counsel only uploaded the subpoena to the New York State Court Electronic Filing ("NYSCEF") system and did not notify the Court by email, even though the Court had previously communicated to Respondent's counsel that the Court does not receive timely NYSCEF notifications. The Court happened by chance to see the subpoena on November 17, 2021 and promptly so-ordered it and notified all the parties by email. HPD's Quash Motion ensued one day later, on November 18, 2021. At around the same time, Respondent's counsel moved for a stay of the trial. The Court denied Respondent's motion for a stay by an order dated November 18, 2021, at which time Respondent's counsel said to the undersigned on the record, "you're a disgrace." Respondent's counsel then emailed the Court a recusal motion later that same day, November 18, 2021 ("the Recusal Motion"), stating in the email that the Court displayed "bias," that the Court "condon[ed] perjury and lies," and that the Court of "trampl[ed]" Respondent's rights.
Respondent's counsel subpoenaed from HPD copies of tenant complaints from March of 2020 onward, HPD inspection reports from July 18, 2021 and September 19, 2021, communications involving HPD inspectors from March of 2020 onward, and inspection guidelines. The two items that Respondent's counsel subpoenaed that post-dated October 21, 2021 were reports from HPD inspections that took place on October 28, 2021 and November 4, 2021. Gdanski Aff. In Support, Exhibit N, NYSCEF #109.
Gdanski Aff. In Support, Exhibit H, NYSCEF #103 at 3 of 8.
Gdanski Aff. In Support, Exhibit O, NYSCEF #110.
Gdanski Aff. In Support, Exhibit H, NYSCEF #108 at 6 of 8, n.2.
Gdanski Aff. In Support of the Motion, Exhibit S, NYSCEF #114, at 2 of 43.
Respondent's counsel's affirmation in support of the Recusal Motion repeated his accusations about "bias" and "condoning lies." Respondent's counsel accused the Court of not saying anything about HPD's ostensible failure release an inspection report until November 16, 2021, as if Respondent's counsel had an order granting him leave for discovery which, as noted above, he did not. Respondent's counsel falsely affirmed that the Court accepted HPD's argument in HPD's Quash Motion, although the Court had yet to rule on HPD's Quash Motion. Respondent's counsel falsely accused the undersigned of rejecting submissions of inspection reports, although it was a clerk who had rejected such submissions and the undersigned had no notice of them.
Gdanski Aff. In Support of the Motion, Exhibit P, NYSCEF #111, at 1-2 of 5.
Id. at 2 of 5.
Id. at 3 of 5.
Id. at 4 of 5.
Gdanski Aff. In Support, Exhibit H, NYSCEF #103 at 7 of 8.
Respondent's counsel referenced the re-calendaring of the trial on Respondent's counsel's request due to his observance of the Sabbath. The record on October 21, 2021 did not contain any objection on that basis, although the Court surmises that Respondent's counsel may have said something to that effect during the time that the Court had muted him. After the Court appearance, Respondent's counsel emailed the Court, stating that his Sabbath observance was a reason to calendar the trial on a day other than a Friday. Within ten minutes of receiving the email, the Court accommodated Respondent's counsel's request and rescheduled the trial to a Monday. Respondent's counsel dishonestly chose to characterize this exchange as the Court "disregarding" his objection to a trial on a Friday. Respondent's counsel also argued that his Sabbath observance impaired his ability to oppose HPD's Quash Motion, ignoring the reality that Respondent's counsel himself created the short time frame by waiting until the last minute to serve Respondent's subpoena and that HPD turned a quash motion around in one day. That did not stop Respondent's counsel from affirming, "[i]t is disgraceful that such a lack of justice is even displayed in our Court consistently against [l]andlords and Jews, as Judge Stoller has done here."
See Gdanski Aff. In Support of the Motion, Exhibit H, NYSCEF #103 at 7 of 8.
Gdanski Aff. In Support, Exhibit P, NYSCEF #111, at 1.
Gdanski Aff. In Support, Exhibit P, NYSCEF #111 at 3-4.
In a sanctions motion, the Court may permissibly consider Respondent's counsel's conduct in previous instances, Mokay v. Mokay , 111 A.D.3d 1175, 1178, 976 N.Y.S.2d 274 (3rd Dept. 2013), including in previous litigation. Nachbaur v. Am. Transit Ins. Co. , 300 A.D.2d 74, 75, 752 N.Y.S.2d 605 (1st Dept. 2002), appeal denied , 99 N.Y.2d 576, 755 N.Y.S.2d 709, 785 N.E.2d 730, cert. denied sub nom. Moore v. Am. Transit Ins. Co. , 538 U.S. 987, 123 S.Ct. 1801, 155 L.Ed.2d 682 (2003). Before this litigation, Respondent's counsel moved to recuse another Housing Court judge, Hon. Remy Smith, accusing her of an appearance of "bias" against him and his religious practices. Before this litigation, Respondent's counsel moved to recuse another Housing Court judge, Hon. Heela Capell, from a case, also accusing her of apparent bias against him, and accusing her of "grudgingly" adjourning a trial to accommodate a religious holiday he observes. Again, before this litigation, Respondent's counsel told yet another Housing Court judge, Hon. Hannah Cohen — who ultimately granted his motion to dismiss — in another Court appearance that she was holding a "biased" hearing. In this matter, Respondent's counsel filed a notice of appeal on a denial of his summary judgment motion, superfluously writing on the notice of appeal that the Housing Court Judge who denied his motion, Hon. Julie Poley, exhibited "gross overwhelming disregard" of various facts and "fully displayed" the appearance of "bias". A transcript of an appearances in the record before Hon. Heela Capell showed that she had to tell Respondent's counsel at one point not to "yell" and that Respondent's counsel was "screaming."
Gdanski Aff. In Support, Exhibit E, NYSCEF#100 at 4 of 5, ¶4.
Gdanski Aff. In Support, Exhibit J, NYSCEF#105 at 5 of 13, ¶12. It bears noting that Hon. Heela Capell actually honored Respondent's counsel's request.
Gdanski Aff. In Support, Exhibit G, NYSCEF #102 at 16, lines 3-4, and 17, lines 9-10.
Gdanski Aff. In Support, Exhibit L, NYSCEF #107 at 1-2.
Gdanski Aff. In Support, Exhibit I, NYSCEF #104, at 9 lines 19-21.
Id. at 10, lines 14-16.
Respondent's counsel was not moved to make the baseless, outrageous accusations against the undersigned because of any uniquely unjust rulings of the undersigned. Baseless and outrageous accusations against judges are Respondent's counsel's modus operandi. When he does not get what he wants, he raises his voice. He baselessly accuses judges of bias. He baselessly and disgracefully accuses judges of, in effect, anti-Semitism.
Insults and baseless ad hominem attacks directed at the Court are sanctionable, Matter of Kover , 134 A.D.3d 64, 74 (1st Dept. 2015), Mokay , supra , 111 A.D.3d at 1178, 976 N.Y.S.2d 274, Nachbaur , supra , 300 AD2d 75-76, William P. Pahl Equip. Corp. v. Kassis , 182 A.D.2d 22, 32, 588 N.Y.S.2d 8 (1st Dept. 1992), Rector v. Video Editions, Inc. , 4 Misc 3d 43, 44-45, 780 N.Y.S.2d 837 (App. Term 1st Dept. 2004), Kyle v. Lebovits , 17 Misc 3d 1124(A)(, 851 N.Y.S.2d 70 S. Ct. NY Co. 2007), appeal dismissed , 58 A.D.3d 521, 870 N.Y.S.2d 360 (1st Dept.), appeal dismissed , 13 N.Y.3d 765, 886 N.Y.S.2d 865, 915 N.E.2d 1162 (2009), cert. denied , 559 U.S. 938, 130 S.Ct. 1524, 176 L.Ed.2d 113 (2010), as are baseless serious accusations against the Court. K.G. v. C.H. , 2022 N.Y.L.J. LEXIS 119, *33-35 (S. Ct. NY Co.). Examples of sanctionable statements are: "[t]his Court appears to have completely ignored [a litigant's] wishes and appears ready to run completely roughshod over them and over her rights," Kover , supra , 134 A.D.3d 64, 91 (1st Dept. 2015) (Tom, J., concurring); a statement that the Court "completely disregarded what [a litigant] herself believes or feels, without any proof or evidence." Id. at 91-92 ; and an accusation that the Court committed acts of misconduct and a dereliction of duties. Id. at 93. Respondent's counsel's insults and attacks on the Court are of a piece with those found to be sanctionable in this authority.
While the standards for sanctions are not the same as standards for contempt, the Court finds instructive statements that attorneys have made to judges that have been found to be contemptuous, such as, "you made enough bad law in this case"; saying that a case should be sent from the judge presiding over it to a "fair and impartial judge" instead; sarcastically asking the judge to conduct the Court in a manner consistent with the laws of the State of New York; accusations that the judge is biased against the attorney's client; saying that the attorney was incapable of getting a fair trial before the judge; stating that a judge allowed "the worst perpetration of a fraud" the attorney has ever seen in a courtroom, and stating, "I have never heard anything [like] the rules being formulated in this courtroom." Werlin v. Goldberg , 129 A.D.2d 334, 335-39, 517 N.Y.S.2d 745 (2nd Dept. 1987). Similarly contemptuous remarks include, "I'm not infallible like your Honor"; that a Court ruling was "unbecoming"; that the Court's manner of conducting voir dire was "offensive"; and an accusation that the Court was lying. In re Giampa , 147 Misc 2d 397, 399, 555 N.Y.S.2d 555 (S. Ct. Bronx Co. 1990).
Not only are the comments found to be contemptible and sanctionable exactly the kind of comments that Respondent's counsel made before the undersigned and other judges, the timing and the vehemence of Respondent's counsel's desperate attempt to smear the undersigned give rise to the reasonable inference that Respondent's counsel acted as such to delay the resolution of this litigation, Benefield v. N.Y.C. Hous. Auth. , 260 A.D.2d 167, 168, 687 N.Y.S.2d 370 (1st Dept. 1999), which is sanctionable. 22 N.Y.C.R.R. § 130-1.1(c)(3), Minister, Elders & Deacons of Reformed Protestant Dutch Church , supra , 76 N.Y.2d at 414, 559 N.Y.S.2d 866, 559 N.E.2d 429, Ofman v. Campos , 12 A.D.3d 581, 582, 788 N.Y.S.2d 115 (2nd Dept. 2004). Particularly frivolous in Respondent's counsel's attempts to delay the trial of this matter was the Recusal Motion.
Respondent's counsel continued his insults and inappropriate communications with the Court after the Court declined to sign Respondent's counsel's order to show cause seeking recusal. Respondent's counsel sent the Court two further emails accusing the Court of "bias." On Sunday, November 21, 2022, the day before the trial, having apparently not taken advantage of the four prior weeks to prepare for trial in an ostensibly "trial-ready" case, Respondent's counsel sent a number of emails to the Court and to counsel complaining about working on a Sunday, commenting, "Let's see how many of you work more than a few minutes or hours on a Sunday," and "[a]s I continue working on a Sunday for a case that should be adjourned." On November 22, 2021, the day of the trial, Respondent's counsel said to the Court, "I have been unfairly by you repeatedly and biasedly — do you know what bias is?"
Gdanski Aff. In Support, Exhibit S, NYSCEF #114 at 3, 4.
Id. at 29.
Id. at 30.
Orner Aff. In Opp. and Reply, Exhibit 12, NYSCEF #122 at 194, lines 14-20.
In addition to Respondent's counsel's sanctionable conduct directed to the Court, HPD argues that Respondent's counsel's abusive and unprofessional treatment of his adversaries is sanctionable as well. Particularly notable in this regard is Respondent's counsel's repeated insistence that Petitioner is a liar and a perjurer.
When a tenant commences an HP proceeding like this one, the tenant fills out a form that identifies conditions that the tenant wants HPD to inspect. When Petitioner filled out a request for an inspection for a previous case — not this case — Petitioner asked HPD to place a violation for an "excessive repetitive leak" in "all rooms." When Petitioner filled out the inspection request for this case, although Petitioner wrote "all rooms" on one column, in the rows corresponding to particular entries, Petitioner was specific about which room Petitioner wanted HPD to inspect. In this matter, Petitioner also asked HPD to inspect a "constant leak in the kitchen."
Orner Aff. In Opp. and Reply, Exhibit 13 NYSCEF #123.
Orner Aff. In Opp. and Reply, Exhibit 14, NYSCEF #124 at 1.
Id.
To the extent that the leak that Petitioner complained about was only in the kitchen instead of "all rooms," Respondent's counsel has a point, but a limited one. A request for an inspection is not a pleading or a sworn statement, but a request that HPD inspect for violations, with the entry for a room intended to be guidance for an HPD inspector. The consequences for writing a room on the request where there is no violation is that HPD will not place a violation. As a matter of law, the findings that HPD inspectors make following up on tenant's requests are presumptive, MDL § 328(3), a proposition that does not apply to a request that a tenant makes on a form. Respondent's counsel sought to leverage Petitioner's sloppy statement on a request form in a different index number into relentless accusations of perjury and intemperate name-calling, an accusation completely without merit as to the inspection request in this case, where Petitioner identified specific rooms that he wanted inspected for violations.
Equally lacking in merit is Respondent's counsel's assertion that Petitioner is lying when Petitioner characterized the leak in the kitchen as "constant." The Court has already made a finding that the leak in the kitchen, while intermittent at times, has recurred, documented by unrebutted video recordings of leaking so intense that it is audible in the recordings, most recently in January of 2022. A landlord is not deemed to correct a leak condition until the source of the leak is corrected so that the leak does not recur. Dumbadze v. Saxon Hall Owner, LLC , 93 A.D.3d 756, 757, 940 N.Y.S.2d 315 (2nd Dept. 2012), Rogans Realty Corp. v. Roman , 2012 N.Y. Slip Op. 30287(U)( Civ. Ct. NY Co. 2012). If Respondent's counsel's characterization of Petitioner as a liar for writing "all rooms" on a request for HPD to inspect is a stretch at best, then Respondent's counsel's attack on Petitioner for characterizing the leak as "constant" on this ground is downright disingenuous.
Respondent's counsel also accuses Petitioner of lying about his income when Petitioner filed a request for a fee waiver and when Petitioner filed a hardship declaration pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. Respondent's counsel does not have a basis of knowledge to make an accusation as specific as the accusation he repeatedly levels against Petitioner.
Sanctionable behavior includes insulting behavior, unprofessional communications, and baseless ad hominem attacks directed at an adversary, Kover , supra , 134 A.D.3d 64, 74, Capetola v. Capetola , 96 A.D.3d 612, 613, 947 N.Y.S.2d 94 (1st Dept. 2012), Nachbaur , supra , 300 AD2d 75, such as accusing an adversary of undertaking "a simple yet devious ruse," and that an adversary was attempting to "pull the wool over the court's eyes," Jeffers v. River Park Residences , 71 Misc 3d 1222(A)( Civ. Ct. Bronx Co. 2021), essentially the same conduct that Respondent's counsel has engaged in here.
Respondent's counsel similarly accuses Petitioner's counsel of lying. For such an incendiary accusation, the basis for Respondent's counsel's allegation was never clear. Respondent's counsel emailed the following to Petitioner's counsel on November 21, 2021: "[o]ne day you will account for all your perjury and false statements for I will pursue such charges in whatever venue I will be heard." Threats of the kind that Respondent's counsel made are sanctionable. Cf. Jalor Color Graphics, Inc. v. Universal Adver. Sys. , 2 A.D.3d 165, 767 N.Y.S.2d 615 (2nd Dept. 2003). Notably, the flimsy grounds upon which Respondent's counsel accuses his adversaries of lying appears to be the basis of Respondent's counsel's equally meritless accusations that the Court had been "condoning lies."
Gdanski Aff. In Support, Exhibit S, NYSCEF #114 at 31.
In a similar vein, Respondent's counsel has accused HPD of "collusion" with Petitioner — even as Respondent's counsel elsewhere touts HPD's refraining from placing violations for some conditions that Petitioner complained of. Aside from that problem, accusing HPD of "colluding" with a tenant is just a category error. First, HPD is a litigant, and second, HPD is charged with a duty of enforcing the New York City Housing Maintenance Code. See N.Y.C. Charter § 1802(1). Accusing HPD of "collusion" with a tenant would be like accusing a District Attorney of "colluding" with a crime victim or the Department of Human Rights of "colluding" with a victim of discrimination. Such invective has no use but to inflame.
Respondent's counsel also made accusations that HPD was hiding its inspection report. Once again, Respondent's counsel argues as if he was in a proceeding with discovery, which he was not. HPD had no obligation to disclose anything to Respondent. Be that as it may, HPD puts the results of its inspections online and anyone with a web browser can look them up.
In 2017, Hon. Janet DiFiore formed a Special Commission on the Future of the New York City Housing Court. The Commission studied Housing Court and generated a report. Among the observations in the report was one of "a disturbing lack of civility in some Housing Court facilities." and that "[a] lack of decorum by attorneys and others — in addressing or approaching the court was sometimes evident." Respondent's counsel's conduct provides an unfortunate illustration of this phenomenon when he raises his voice at adversaries and judges, baselessly accuses adversaries of being liars, perjurers, and colluders, and reflexively hurls baseless ad hominem insults and meritless accusations of bias against judges. The enforcement of the sanctions rule against Respondent's counsel is essential to deter conduct that wastes judicial resources and inhibits the proper administration of the court system. Gordon , supra , 202 A.D.2d at 111, 616 N.Y.S.2d 98.
The report can be found here: http://ww2.nycourts.gov/sites/default/files/document/files/2018-06/housingreport2018_0.pdf .
Id. at 28.
The amount of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the attorney's conduct, and prejudice to an adversary. Vicom, Inc. v. Silverwood Dev., Inc. , 188 A.D.2d 1057, 1058, 591 N.Y.S.2d 919 (4th Dept. 1992). Examples of sanctions Courts have awarded assist the Court in making this determination. When an attorney actively deceived a Court and an adversary with false affirmations of service, a sanction of $4,000 was appropriate. PDG Psychological, P.C. v. State Farm Ins. Co. , 9 Misc 3d 172, 178, 801 N.Y.S.2d 144 (Civ. Ct. Queens Co. 2005). Whatever else may be said about Respondent's counsel's conduct, it did not rise to the level of deceiving the Court as such. On another end of the scale, a failure to timely file the note of issue warranted a sanction in the amount of $1,000. Tolkoff v. Goldstein , 185 A.D.3d 1085, 1088 (2nd Dept. 2020). Respondent's counsel's ad hominem attacks on the Court and counsel and Respondent's counsel's attempt to delay this matter with a frivolous recusal motion constitutes more egregious conduct than failing to timely file a notice of issue. This authority therefore indicates that an appropriate award of sanctions is in between $1,000 and $4,000.
An attorney's direct baseless attacks on a Court and efforts to unduly delay a case, conduct that fairly describes Respondent's counsel's conduct, warranted a sanction of $2,500. Mokay , supra , 111 A.D.3d at 1178, 976 N.Y.S.2d 274. Given that the Court of Appeals characterized a sanction of this scale as on the "lower range" thirty years ago, Minister, Elders & Deacons of Reformed Protestant Dutch Church , supra , 76 N.Y.2d at 415, 559 N.Y.S.2d 866, 559 N.E.2d 429, this amount is not unfair to Respondent's counsel, even if he is a solo practitioner, which the Court may consider. Jones v. Camar Realty Corp. , 167 A.D.2d 285, 288, 561 N.Y.S.2d 916 (1st Dept. 1990). Sanctions on an attorney are payable to the Lawyer's Fund for Client Protection at 119 Washington Avenue, Albany, New York 12210. 22 N.Y.C.R.R. § 130-1.3.
Accordingly, it is
ORDERED that the Felipe Orner's Recusal Motion was made primarily to incur a delay of litigation, and is therefore sanctionable, and it is further
ORDERED that Felipe Orner's statements in the Recusal Motion and various emails directly to the Court accusing the Court of bias, anti-Semitism, and "condoning lies" were baseless, frivolous, disrespectful, unprofessional, and intended to delay the trial of this matter, and therefore sanctionable, and it is further
ORDERED that Felipe Orner's disrespectfully raised his voice to the Court, said "this is ridiculous" on the record, called the undersigned "a disgrace" on the record, and emailed the Court to complain about working on a Sunday to prepare for trial, conduct that was baseless, frivolous, disrespectful, unprofessional, and sanctionable, and it is further
ORDERED that Felipe Orner's statements to his adversaries, including his repeated accusations that Petitioner committed perjury, that Petitioner and Petitioner's counsel were liars, and that HPD was guilty of some kind of misconduct, were baseless and meritless attacks, and therefore sanctionable, and it is further
ORDERED that the Court sanctions Felipe Orner pursuant to 22 N.Y.C.R.R. § 130-1.1 ; and it is further
ORDERED that, within twenty days of service of a copy of this order together with notice of entry upon any party to all other parties, the Court orders Felipe Orner to pay $2,500.00 to the Lawyer's Fund for Client Protection at 119 Washington Avenue, Albany, New York 12210 pursuant to 22 N.Y.C.R.R. § 130-1.3 ; and it is further
ORDERED that Felipe Orner provide the Court proof of payment within ten days after doing so.
This constitutes the decision and order of this Court.