Opinion
No. L & T 87923/06.
06-24-2014
TRIBECA EQUITY PARTNERS L.P., Petitioner–Landlord, v. Richard SAVITT, Respondent–Tenant.
Todd Nahins, Esq., Borah Goldstein Alschuler Nahins & Goidel PC, New York City, for Petitioner. Richard P. Savitt, Esq. (self-represented), Savitt Law Firm, PLLC, New York City, for Respondent.
Todd Nahins, Esq., Borah Goldstein Alschuler Nahins & Goidel PC, New York City, for Petitioner.
Richard P. Savitt, Esq. (self-represented), Savitt Law Firm, PLLC, New York City, for Respondent.
Opinion
JAMES E. D'AUGUSTE, J.
Respondent Richard Savitt moves, pursuant to CPLR 5015(a), to vacate the order of the Hon. Jennifer G. Schecter, dated August 16, 2013, which, upon his default, denied his motion seeking to vacate a money judgment entered pursuant to a two-attorney so-ordered stipulation of settlement dated October 19, 2006. Petitioner Tribeca Equity Partners L.P. (“Tribeca”) cross-moves against Savitt to recover, as the prevailing party, its attorney's fees as permitted by the parties' lease. The Court also determines, after a hearing, its own sua sponte motion on the issue of potentially imposing sanctions against Savitt. For the reasons set forth below, Savitt's motion to vacate is denied, Tribeca's cross-motion for attorneys' fees is granted, and, upon the Court's own motion, sanctions are imposed against Savitt.
Hearing exhibits admitted as part of the sanctions and attorneys' fees hearings will be referred to in this decision as “Exh.”
Procedural and Factual History
A. The Proceedings in 2006
On August 29, 2006, Tribeca commenced this nonpayment proceeding against Savitt, an attorney, and Gary Luciani (misspelled in the complaint with an “o” instead of a final “i”), his guarantor on the lease. On September 18, 2006, Savitt personally filed a self-represented answer to the petition. Exh. 12a, Savitt Aff., dated December 3, 2012, at ¶ 8. In his answer, Savitt claimed that he did not owe any rental arrears. Answer ¶ 1. He argued that rent should have been charged to his American Express card, which Tribeca had on file. Id. Apparently relying on Luciani's name being misspelled, Savitt also asserted in his answer that: “Defendant is unaware of anyone by the name of Gary Luciano' and has no idea why his name appears on the complaint.” Answer ¶ 6.
On September 27, 2006, a conference was scheduled in Housing Court (per the court file jacket), at which petitioner's counsel and Savitt allegedly appeared, and the matter was adjourned for a trial to be conducted on October 19, 2006. On the adjourn date, Marion Mishkin, an attorney, appeared on Savitt's behalf. A two-attorney stipulation of settlement was executed and then so-ordered by the Hon. David B. Cohen. Exh. 3, so-ordered stipulation. The agreement provided for a possessory judgment with a stayed warrant of eviction, a money judgment that was subject to Savitt's ability to submit proof demonstrating that paid the sued upon back rent, and Luciani's removal from this proceeding as a respondent. Id.
Savitt claimed during the sanctions hearing that he did not appear on September 27. But Savitt would have been personally notified of this date when he filed his answer. Neither electronic court records nor the proceeding's file jacket records a default. Tr. 74:1–12 (Feb. 18, 2014). Further, contemporaneous billing records for petitioner's counsel indicate that Savitt appeared on this date. Exh. 24; Tr. 88:2–10, 94:19–24 (Mar. 18, 2014). Petitioner's counsel also testified during the hearing on attorneys' fees that because issue had been joined, he would have taken a default against Savitt had he missed this court appearance. Tr. 95:9–13 (Mar. 18, 2014).
B. Savitt's Motion to Vacate the 2006 Judgment and the January 18, 2013 Decision
On December 3, 2012, more than six years after the so-ordered stipulation of settlement was signed and judgments entered, Savitt moved to vacate them. Savitt did not submit an affidavit in support of his motion; rather, he submitted an affirmation. Savitt's ground for seeking relief, as articulated in his affirmation, was that Mishkin, unidentified in the motion, was essentially a “rogue attorney” who appeared on October 19, 2006 without his knowledge and who settled the case without his consent. Savitt claimed that he had orally agreed with an unidentified representative of Tribeca to break the remaining term of the lease. Exh. 12a at ¶ 13. He further claimed that “[t]he parties agreed there would be no money due and owing to either party subsequent to Savitt leaving the premises.” Id. Despite claiming in his answer that rent was automatically charged to his American Express card, Savitt did not attach any proof to his motion supporting his contention that, at the time of his departure, there were no rental arrears.
On January 18, 2013, this Court (Samuels, J.) issued a decision and order denying Savitt's motion to vacate the money judgment entered in 2006. In denying the motion, Judge Samuels noted that Savitt provided no explanation about why, after having answered the petition, he did not attend the court conference at which Mishkin, the alleged rogue attorney, appeared and settled the case on his behalf. Judge Samuels also concluded that Savitt lacked a plausible explanation for not inquiring about the litigation's status for over six years after having personally answered the petition.
C. Savitt's Motion to Renew and Reargue the January 18, 2013 Decision and Order
On April 15, 2013, Savitt served a motion to renew and reargue the January 18, 2013 decision and order. As with his original motion, Savitt failed to submit an affidavit in support of his motion and again relied upon his affirmation. Savitt disclosed in his motion papers that he filed an ethics complaint against Mishkin. Exh. 13, Savitt Aff., dated April 15, 2013, at ¶ 23. In his reply affirmation, Savitt attached various submissions he made against Mishkin with the Departmental Disciplinary Committee for the First Judicial Department (“Departmental Disciplinary Committee”). Savitt Reply Aff., dated June 4, 2013, Exhs. A–E. Tribeca cross-moved for the imposition of attorneys' fees as allegedly provided for in the parties' lease. The motion was returnable on June 11, 2013. On the motion's initial return date, Judge Samuels indicated that she would conduct an evidentiary hearing relating to Savitt's contention that Mishkin was a rogue attorney. See Interim Order dated June 11, 2013. She also directed Savitt to offer proof that he paid his rent for the time period covering August 2006 through October 2006. Id. In addition, Tribeca was directed to produce documents between Mishkin and Tribeca or Tribeca's attorneys. Id. Finally, Judge Samuels explained in her order that she expected Savitt to subpoena Mishkin for the hearing, which was set for July 23, 2013. Id.
After the June 11 court appearance, Tribeca submitted an affidavit from a representative of building management attesting that neither Tribeca nor its owner had hired Mishkin and that the companies had never communicated with her. Dennis Davies Aff., sworn to July 26, 2013, at ¶¶ 2–3. Absent from the court file was any proof, as directed by Judge Samuels, that Savitt paid rent for the three months constituting the money judgment entered against him. Savitt did serve a subpoena on Mishkin; that resulted in a motion to quash on the ground, among others, that the subpoena was defective because it was improperly signed by Savitt, a party to the litigation. Mishkin attached to her motion a decision issued by the Hon. Marilyn Shafer, which criticized Savitt for improperly using affirmations despite being precluded from doing so because he was a party. Exh. 18, Savitt v. Epinard LLC, 2004 N.Y. Slip Op. 30366(U), 2004 WL 6339870 (Sup.Ct., N.Y. County Nov. 30, 2004) (Shafer, J.).
On July 23, 2013, the return date for the motions, Savitt withdrew his subpoena because it was defective. Tr. 24:14–26:22 (Jul. 23, 2013). Therefore, Judge Samuels issued an order granting the motion to quash without prejudice to a new subpoena being properly served on Mishkin. Order dated July 23, 2013. The matter was adjourned for an evidentiary hearing to be conducted on August 15, 2013. Id.; Tr. 49:13 (Jul. 23, 2013). A review of the transcript of the proceedings for July 23 reveals a surprising fact: Mishkin submitted telephone records documenting calls that she had with Savitt on the same day that the case was settled in 2006. Tr. 12:15–16 (Jul., 23, 2013). Savitt did not explain how Mishkin could have records documenting telephone calls if, as he claimed, he had never spoken to her. Id. at Tr. 12:6–16. Since exhibits attached to Mishkin's motion, such as her phone records, were missing from the court file, this Court (d'Auguste, J.) issued an order on February 10, 2014 directing Mishkin to reproduce her submissions in this action.
It would later be revealed during the sanctions hearing that Mishkin had also appeared for Savitt in Liden v. Kaulami, Index No. 108958/06 (Sup.Ct., N.Y. County). The Court secured a copy of the transcript for an appearance on October 12, 2006, before the Hon. Judith J. Gische, which confirmed Mishkin's representation that she appeared on Savitt's behalf in Linden seven days before the court conference in which the instant proceeding was settled.
The undersigned's examination of the July 23, 2013 transcript of proceedings also reveal an unusual exchange in which Savitt claimed that he did not receive notice of any of the court dates. Id. at Tr. 20:19, Tr. 21:4–5 (Jul. 23, 2013). Judge Samuels then discussed standard Housing Court procedure that provides for the automatic scheduling of a court date when an answer is filed. This statement by Judge Samuels resulted in Savitt's making an affirmative representation that he had never previously been in Housing Court:
THE COURT: ... Cases don't disappear or evaporate. If you [are] in housing, they discontinue, are dismissed or go [to] trial. They are settled. They don't go in purgatory where it doesn't go anywhere. As soon as you have an answer, you get a court date. That is the way Housing Court works.
MR. SAVITT: I have, to my recollection, I have never been in Housing Court in New York before this case.
THE COURT: To my recollection?
MR. SAVITT: To my recollection.
THE COURT: To my recollection.... When you say it is to my recollection ... it gives you an out, gives you the door open for you to backpedal.... I don't think I would forget a Housing Court case. I don't think I would forget how many times I appeared in Housing Court.
Id. at Tr. 21:10–22:2 (emphasis added ). Upon being pressed on his “recollection” caveat, Savitt changed the topic from his affirmative representation by demanding that Judge Samuels recuse herself:
Your Honor, I am going to request again that you recuse yourself. I have a copy of the transcript on another Savitt case, index number 009762/12. You made many—let me put this on the record, you made many false statements about the facts of that case that can be proven by documentary evidence. I have a copy of the transcript. I will be filing a motion after we leave here today, but I am requesting that you recuse yourself, because you have unfair, undue bias against me based upon your findings in this case which were absolutely wrong not based on fact and based on your biases, unfair, unjustified biases against me personally, based upon the statements you just made again, which I am requesting that you recuse yourself, because I do not think you can be fair and impartial in this case....
Id. at Tr. 22:3–17. Savitt incorrectly stated the year of the case's index number, which is Savitt v. Daniel Express Comm., Inc., Index No. CV–9762/11 (Civ.Ct., N.Y. County).
As discussed below, court records reveal Savitt was in fact a respondent in two Housing Court cases prior to the instant litigation; in both cases, he was sued for nonpayment by his landlord for his tenancy immediately preceding his tenancy with Tribeca. The actions were both captioned Bowery at Spring Partners, LP v. Savitt, with New York County Civil Court Index Nos. L & T 096767/03 (Spring Partners I ) and L & T 82369/04 (Spring Partners II ). The proceeding in Spring Partners II was settled pursuant to a stipulation of settlement dated October 29, 2004, which was so-ordered by the Hon. Michael J. Danziger. Exh. 11b, so-ordered stipulation in Spring Partners II. A warrant of eviction, signed by the Hon. Ernest J. Cavallo (Exh. 11a, judgment in Spring Partners II ), was stayed until December 31, 2004 (Exh. 11b), which was the day before Savitt took possession of the subject premises at issue in this litigation. Exh. 2, lease dated December 23, 2004. Savitt also agreed to the entry of a stayed money judgment (Exh. 11b), which, as discussed below, Savitt sought to vacate three years after it was entered. Savitt's application to vacate the money judgment entered in Spring Partners II was denied by the Hon. Michelle D. Schreiber because it was at odds with the terms of the settlement: “Decline to sign w/o prejudice. Not clear what relief is sought. Stip. of 10/4/04 included $ judgment.” Spring Partners II, supra, (Civ.Ct., N.Y. County Jan. 2, 2008) (Schreiber, J.).
Despite being specifically asked about the existence of any applications to vacate default judgments entered against him outside those made in this action, Savitt failed to disclose this application. Tr. 69:23–70:1 (Feb. 18, 2014).
On August 15, 2013, the date to which the motion and cross-motion were adjourned, the proceedings were repeatedly interrupted by Savitt's inappropriate statements directed at Judge Samuels, including assertions that she “made false statements about the record, about the documents.” Tr. 7:17–18 (Aug. 15, 2013). Judge Samuels noted that Savitt demanded her recusal only after she ruled against him. Id. at Tr. 7:4–8 (“[I]f I am biased against you, I should be recusing myself in all of your matters. You did not ask me to recuse myself in this matter when it was submitted to me in Special Term on that day.”). Judge Samuels did eventually recuse herself, but for reasons unrelated to Savitt's claim of bias; the recusal was because she was not handling cases involving The Related Companies L.P. (“Related”), which, she learned during colloquy, has an ownership interest in Tribeca. Id. at Tr. 19:20–20:10; see also Todd Nahins Aff., dated October 8, 2013, at ¶ 16. The evidentiary hearing was adjourned until the following day, August 16, 2013. The judge assigned to Special Term I would also, according to Judge Samuels' directive, conduct a de novo review of the original decision. Tr. 21:7–16 (Aug. 15, 2013); see also Recusal Order dated August 15, 2013. Although Savitt requested that Judge Samuels adjourn the matter until the following week because he had “some people coming in from out of town,” his application was denied. Tr. 20:9–10 (Aug. 15, 2013). The court appearance ended with Savitt's confirming that the motions would be heard the next day in Special Term I. Id. at Tr. 21:17–20.
Judge Samuels' authority to sua sponte direct such a de novo review is doubtful because “a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.” JSO Associates, Inc. v. Price, 104 AD3d 737, 738 (2d Dep't 2013), citing, Adams v. Fellingham, 52 AD3d 443, 486 (2d Dep't 2008). In directing a de novo review, however, Savitt was provided an opportunity to convince a new judge of the merits of his arguments.
On August 16, 2013, the matter was called in Special Term I, where Judge Schecter was presiding. Tribeca's counsel appeared for the hearing, but Savitt failed to appear. Savitt never notified Tribeca's counsel that he would not be appearing. Tr. 119:7–15 (Feb. 18, 2013). He also did not submit an affidavit of actual engagement nor any other document notifying the Court that he would not be appearing that day. Id. at Tr. 117:24–118:22. Upon Savitt's failure to appear, Judge Schecter issued an order denying Savitt's motion on default. Exh. 14, Order dated August 16, 2013. Tribeca's cross-motion for attorneys' fees was apparently abandoned at that juncture with no decision being issued.
D. Savitt's Motion to Vacate the August 16, 2013 Order
On September 19, 2013, more than a month after defaulting, Savitt served a motion to vacate Judge Schecter's August 16, 2013 order. While Savitt signed his September 19 notice of motion to vacate, he failed to sign and have notarized his “affidavit” that he submitted in support of the motion. Exh. 4, Unsworn Savitt Aff ., dated September 19, 2013. Savitt, in his defective motion papers, continued to unleash vitriol towards seemly any person that has been involved in the litigation against him, which includes Judge Samuels, Nahins, Davies, and Mishkin. Id. at ¶¶ 20, 22, 23, 26, 28, 31, 35, 39, 40, 42, and 46. For instance, Savitt claimed that Judge Samuels “has made other derogatory and false statements about me and my actions and behavior in the past.” Id. at ¶ 39. Savitt further stated that Judge Samuels refused to recuse herself “despite the fact that I had a transcript [in Daniel Express ] ..., whereby Judge Samuels had made repeated false statements ON THE RECORD, and was made aware of same.” Id. at ¶ 40 (emphasis in original).
Savitt claims to have filed an executed affidavit, but the only copy in the court file is unsigned. In a different action, Savitt submitted an unsigned “reply affirmation” in support of a procedurally defective “second motion to reargue.” Savona v. Honda North America, Inc., Index No. CV–066192/10 (Civ.Ct., N.Y. County May 5, 2014) (d'Auguste, J.) (“[T]he February 10, 2014 reply affirmation' submitted in support of the motion by plaintiff's counsel, Richard Savitt, Esq., is not signed. The signature page of the unsigned reply affirmation is annexed hereto as Decision Exh. 1.”).
On the issue of his excuse for not appearing in court as directed by Judge Samuels, Savitt claimed in his unsworn submission that “I was not in NYC on the morning of August 16, 2013 and could NOT attend the hearing.” Id. at ¶ 53 (emphasis in original). He also stated that “I explained to Judge Samuels, that I was NOT available on August 16, 2013, that I had two (2) clients in from Charlotte, N.C.” Id. at ¶ 51 (emphasis in original). As will be discussed below, a transcript of the August 15 court appearance reveals that Savitt neither informed Judge Samuels that he was unavailable on August 16 nor explained that he had clients coming in from Charlotte, North Carolina. In other words, the purported excuse that Savitt made, and which he criticized Judge Samuels for rejecting, was a fallacy.
The return date of Savitt's new motion was scheduled for December 3, 2013. Counsel for Tribeca appeared, but Savitt did not. Because Tribeca's cross-motion essentially sought summary judgment on the issue of petitioner's entitlement to attorneys' fees, the Court took the matter on submission to perform a closer review of the application for relief. See Liberty Taxi Mgt., Inc. v. Gincherman, 32 AD3d 276, 277 (1st Dep't 2006), citing, Vermont Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (“[T]he failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the ... court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and is entitled to judgment as a matter of law.”).
E. The February 18, 2014 Sanctions Hearing
After reviewing the motion, as well as the cross-motion and court records, this Court concluded that Savitt's conduct may have risen to the level of frivolity. The Court therefore sua sponte placed the matter on its calendar to provide Savitt with the opportunity to address this Court's concerns:
The Court has under submission Respondent Richard Savitt's motion to vacate an August 16, 2013 decision and order (Schecter, J.) and Petitioner Tribeca Equity Partners L.P.'s cross-motion, as a prevailing party, for the imposition of attorneys' fees. The Court is considering the possible imposition of sanctions against Savitt in accordance with 22 N.Y.C.R.R. 130–1.1. Because the issue was not briefed, Savitt will be provided an opportunity to address the Court's concerns at a court conference to be held on February 18, 2014 in Special Term I (Room 325) at 9:30 a.m., which shall be conducted on the record.
Exh. 1, Order dated January 28, 2014. Having reviewed transcripts and the court file, this Court also determined that certain relevant documents were missing from the court file. This Court therefore issued an order “direct[ing] that, on or before February 14, 2014, non-party Marion S. Mishkin shall provide the Court with an additional complete copy of all of her submissions made to the Court in this matter.” Order dated February 10, 2014.
On February 18, 2014, this Court began proceedings in the sanctions hearing by marking the scheduling order as Exhibit 1 and reading it into the record. Tr. 2:1–16 (Feb. 18, 2014). Nahins, petitioner's counsel, placed his appearance on the record. Id. at 2:19–20. Thereafter, Savitt was sworn in because he would be answering this Court's questions under oath. Id. at 2:17–25. Having been apprised of the hearing by the February 10, 2014 court order, Mishkin also appeared on February 18 and was called upon to provide testimony under oath. Savitt was provided the opportunity to cross-examine her.
When Savitt represented that he appeared on December 3, 2013 for argument of the motion and cross-motion, this Court had Nahins sworn in so that his statement regarding Savitt's absence on that day would be under oath. Id. at Tr. 108:19–25.
The Court initially requested that Savitt address his submission of an “affidavit” that was not executed. Id. at Tr. 4:3–9. In a rambling response, Savitt asserted that the copy in the Court's possession, which was marked as Exhibit 4, must be a version he sent to City Marshal Martin A. Bienstock, who apparently had served an execution on Savitt relating to the money judgment. Id. at Tr. 5–1:13. Savitt never provided this Court with an actual explanation for why the only copy in the Court's possession was not executed. Nor, during the hearing or at any time thereafter, did Savitt provide this Court with an executed copy of the affidavit.
Savitt's attempt to explain, without success, the absence of an executed copy of his affidavit on file with the Court raised a new issue: Savitt apparently secured a stay of execution of the money judgment without a court order. Id. at Tr. 6:17–19 (“that's [Marshal Bienstock's] internal number so they could halt this execution of the wrongfully obtained judgment.”). Having been so advised of this de facto stay of execution, the Court asked, “Why would the execution be stayed upon your motion? A notice of motion doesn't stay [execution of a judgment].” Id. at Tr. 6:20–24. Savitt asserted in response that Marshal Bienstock ceased enforcement efforts because “[t]hey know that I'm an honest and ethical attorney and they took me at my word that this was on going and they told me we're not going to proceed with it until this is finished being heard.” Id. at Tr. 7:1–4. The Court followed up on Savitt's statement by asking, “Are you telling the Court that you utilized a notice of motion as if it was a court order preventing execution?” Id. at Tr. 7:5–7. At this point Savitt disclaimed any responsibility by asserting that he only provided the motion papers because “they asked ... me for a copy.” Id. at Tr. 7:8–9. Although the Court did not receive a satisfactory explanation of how the execution on a money judgment was apparently stayed without a court order, the focus of the proceedings shifted to other topics. Id. at 7:11–12.
The Court turned Savitt's attention to his primary contention in support of his application: that a rogue attorney executed the so-ordered stipulation without his knowledge or consent. To explain his failure to appear after filing an answer or inquiring about the status of the pending litigation, Savitt asserted that he orally settled the dispute with a representative of Tribeca. The alleged oral agreement permitted Savitt to break the remaining term of his lease with the landlord's retaining his security deposit. Id. at Tr. 8:5–13. When pressed on his explanation, Savitt provided no details regarding the circumstances by which he secured the alleged oral settlement. He could not even identify the representative of Tribeca with whom he allegedly entered into the oral agreement, except to admit, under questioning, that it was not petitioner's counsel. Id. at Tr. 8:16–21. Savitt also could not explain how he could ethically discuss the case with this unidentified representative of Tribeca pursuant to then-DR 7–104 when he knew that Tribeca was represented by counsel in pending litigation against him. See Matter of Wehringer, 135 A.D.2d 279, 282 (1st Dep't 1988) (“Although he knew that [defendant] was represented by counsel he negotiated directly with her without permission from her attorneys and so violated DR 7–104(A)(1).”); see also Topic: No Contact Rule As Applied to Lawyer Acting Pro Se and Lawyer Represented Party; 2011 WL 7784089, N.Y. Eth. Op. 879 (N.Y. St. Bar. Assn. Comm. Prof. Eth. Sep. 27, 2011) (noting that self-represented attorneys cannot ethically contact a represented party except in limited circumstances not present here).
Even under current ethics rules (Rule 4.2), attorneys representing themselves are still not permitted to contact a represented party without providing opposing counsel with advance notice of the meeting.
Savitt was also unable to explain how such an oral settlement would be legally enforceable under CPLR 2104. Savitt claimed not to be aware of the language of CPLR 2104, which this Court then read to him. Id. at Tr. 77:22–78:15. His asserted ignorance of this procedural rule is suspect because Savitt's previous attempt to rely on an oral settlement was rejected by Judge Shafer in Epinard because it was not in open court. See 2004 WL 6339870, at *3. Faced with the conundrum of the absence of a writing, Savitt then baldly claimed that settlement documents must exist without identifying them: “I believe 100% there is documentation sitting at whatever, Tribeca Equity Partners.” Tr. 79:1–2 (Feb. 18, 2014). Documents Tribeca produced after the hearing did not contain any material discussing a potential agreement, much less memorializing one. Exh. 25. Savitt has never produced anything supporting the existence of a settlement.
CPLR 2104, which was effective in 2006, provides that “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk.”
Nor, for that matter, could Savitt explain how he believed, to the extent that this is his claim, that he could enter into an oral agreement to waive outstanding rental arrears when his lease contained a standard prohibition against orally modifying lease terms, i.e., a no waiver provision. Exh. 2 at ¶¶ 16, 17, 28. As would later be addressed on March 18, 2014, Savitt was aware during the course of these proceedings that he could not have orally modified the terms of his lease after he unsuccessfully litigated that very issue in another action. See Exh. 23a, Tosi v. Yorkshire Towers GP Co., LLC, Index No. CV–013955/09 (Civ.Ct., N.Y. County Apr. 2, 2013) (Reed, J.) (holding that a standard form apartment lease containing “no waiver” and general merger clauses require a writing signed by the landlord to permit the early termination of a lease without penalty or a relinquishment of the tenant's rent obligations).
Next, the Court delved into Savitt's disrespectful behavior toward Judge Samuels. Savitt remained unapologetic for making multiple accusations of misconduct directed at Judge Samuels. Tr. 25:11–26:11 (Feb. 18, 2014). Rather, Savitt essentially wanted to litigate his perceived failings of Judge Samuels in Daniel Express . The Court inquired about the status of any appellate review of the decision, issued in 2012, that so bitterly aggrieved him. Id. at Tr. 43:3–6. Savitt admitted that despite having filed a notice of appeal, he never perfected an appeal. Id. at Tr. 43:3–11. Despite the decision in Daniel Express being final, Savitt has apparently failed to pay the sanction imposed against him by Judge Samuels in that matter. During his testimony, Savitt exhibited absolutely no remorse for repeatedly being disrespectful to a judge.
Although irrelevant to Savitt's professional obligation to be respectful of the judiciary, Daniel Express is discussed here for background purposes. The facts of Daniel Express are straightforward: On February 16, 2011, Savitt purchased and returned a $321.18 cell phone. A refund was processed the same day minus a thirty-seven dollar ($37) charge allegedly relating to a SIM card sold for use with the phone. Exh. 10c, settlement refund report. Savitt misrepresented that the refund took place after the action was filed. Tr. 37:14–16 (Mar. 18, 2014) (“The refund was given after the lawsuit was filed.”). Savitt's subpoenaed banking records revealed that on February 24, 2011, the $283.91 refund had been returned to Savitt's bank account. On February 25, according to the clerk's file stamp on the summons, Savitt commenced his action against Daniel Express. CCA 400 ; see also CPLR 304 ; Spodek v. New York State Com'r of Taxation and Finance, 85 N.Y.2d 760, 763–66 (1995). Savitt's complaint asserted multiple causes of action each seeking $25,000.
Daniel Express eventually sought summary judgment and sanctions. When the motion was first returnable, Savitt claimed to be unable to secure his own banking records to document the refund's existence. Savitt Aff. in Daniel Express, dated August 13, 2012, at ¶ 20. On May 8, 2012, Judge Samuels personally handwrote a subpoena for Savitt to serve on his own bank. Id. at ¶¶ 12, 17, 21, see also Exh. 9, Decision and Order in Daniel Express, dated July 20, 2012. On June 14, 2012, Savitt failed to appear for oral argument of Daniel Express' motion. Exh. 9. In addition to dismissing Savitt's complaint, Judge Samuels also awarded Daniel Express $8,250 in attorneys' fees. Id.
When Savitt moved to vacate his default, he stated in his affirmation his reason for not appearing on June 14, 2012:
On May 8, 2012, I relied on Judge Samuels writing that “No appearance is required if records are sent to civil court NY, 111 Centre St. NY, N.Y. 10013 Rm. 225” and me [sic] until I received the court decision dated July 20, 2012. I was waiting to be notified of a future hearing date.
Savitt Aff. in Daniel Express, dated August 13, 2012, at ¶ 21. During oral argument of Savitt's motion to vacate his default in that action, Savitt confirmed that the reason he did not appear was that the subpoena, which was addressed to non party Citibank, stated that no appearance was necessary if the records were produced:
MR. SAVITT: Because on May 8th Your Honor drafted—Your Honor drafted a subpoena and asked me to serve it on Citibank because I have sent three letters to Citibank requesting records.... Your Honor in the subpoena specifically wrote that it was—that the bank was to supply the record by May 27th, but that no one needed to appear. The language is in the document that you have....
THE COURT: On the subpoena it says that?
MR. SAVITT: Not to appear.
THE COURT: Who was the subpoena directed to?
MR. SAVITT: Citibank.
THE COURT: They are not to appear, if they supply the records. Are you thinking that was you not to appear?
MR. SAVITT: Due [to] the fact I was unable to get the records, yes. I thought Your Honor was waiting to [ ] get the record and tell us a date to appear....
Exh. 10a at Tr. 3:21–4:14 (Sep. 12, 2012), transcript of proceedings in Daniel Express. Savitt admitted during colloquy that he had never inquired about the production of the subpoenaed bank records. Id. at Tr. 6:2–6.
After hearing oral argument, the Court denied Savitt's motion to vacate on the ground that his proffered excuse for failing to appear was unreasonable:
[Savitt's] argument that he believed a directive addressed to non-party Citibank, written on a subpoena to Citibank, was a directive to the litigants that they need not appear if the records are provided, is not credible.
Exh. 10b, Decision and Order in Daniel Express, dated December 17, 2012. Judge Samuels also found Savitt's assertion in his August 13, 2012 affirmation that “I have never received a check or credit in the amount of $321.18 from the Defendants” to be “disingenuous,” given “that he did receive a refund, even if it was not in the amount he sought.” Id. at 6.
Savitt was then given the opportunity by this Court to correct the record relating to his untruthful statement that he had never been involved in another Housing Court case prior to the instant litigation. With a second judge questioning the veracity of his affirmative representation, Savitt modified his earlier testimony, but he did not admit the existence of his earlier litigation. Instead, Savitt essentially doubled down on the “recollection” escape hatch about which Judge Samuels had previously challenged him. Tr. 21:16–22–2 (Jul. 23, 2013). Savitt now represented that “I have no idea if I have ever been in Housing Court or not.” Tr. 24:6–7 (Feb. 18, 2014). When the Court inquired about the change in representations, Savitt blithely responded: “That's my testimony now.” Id. at Tr. 24:13. Savitt refused to provide a definitive answer despite having been focused solely to Housing Court cases in which he was a party prior to the instant litigation. Id. at Tr. 24:17–20.
When this Court confronted Savitt with the documentary evidence showing that, contrary to his assertion to Judge Samuels, he had previously been in Housing Court, Savitt justified his failure to recall the prior litigations because he was, at the time, “practicing in Connecticut and New York.” Id. at Tr. 36:18–24. Savitt's handling of cases in two states as an attorney should have had little impact on his ability to recall two lawsuits in which he was personally sued for not paying rent, with the later proceeding resulting in his departure, pursuant to a stayed warrant of eviction, from the apartment in which he resided before he lived in the apartment subject to the instant litigation. Exh. 11b, so-ordered stipulation in Spring Partners II. Savitt was also required to make a future payment to satisfy a money judgment entered against him in Spring Partners II pursuant to the stipulation he signed. Exh. 11a. Furthermore, Savitt unsuccessfully sought by order to show cause to vacate the money judgment he agreed to in Spring Partners II three years after it had been entered; as noted above, Savitt failed to disclose this application when this Court inquired about the existence of any other attempt to vacate judgments entered against him. Tr. 69:21–70:1 (Feb. 18, 2014).
Savitt also stood by his previous representation that he had never previously spoken to Mishkin. In doing so, he was unable to explain the six telephone calls he had with Mishkin, as reflected in phone records, on the day the action settled. The only explanation Savitt provides for the existence of these phone calls is the highly implausible contention that he believed that the phone calls were from Tribeca: “So, receiving phone calls from somebody representing whatever, Tribeca Equity Partners, on that day stating that the case is resolved, the case is done, that I believe.” Tr. 81:5–8 (Feb. 18, 2014); see also id. at Tr. 66:3–4 (“I said that I spoke to a representative of 105 Duane Street which I have always said, Your Honor”). Savitt was unable to give the Court any detail regarding the contents of the discussions that took place during these phone calls. Id. at Tr. 66:24–67:13.
Mishkin, on the other hand, was able to provide the Court with a detailed accounting of her authority to appear on Savitt's behalf and Savitt's approval of the terms of the settlement. Mishkin testified that, consistent with her custom for obtaining assignments, she received phone calls from Samson Freundlich of Per Diem Services on the evening of October 18, 2006 with the assignment to appear on Savitt's behalf the following day. Mishkin identified from her phone bill the three calls she had with Freundlich relating to the assignment. Id. at Tr. 86:11–20. Mishkin further identified from her phone bill the six phone calls she had with Savitt. Id. at Tr. 86:23–87:3. The phone bill lists Mishkin's calls to Savitt's cell phone number as all being on October 19, 2006 between 9:31 a.m. and 1:09 p.m. Exh. 8. Mishkin testified that before Judge Cohen so-ordered the stipulation, she read the entire stipulation to Savitt over the phone “line by line word by word of what resulted in Court's Exhibit number 3.” Tr. 87: 6–10 (Feb. 18, 2014). This phone call took place at 12:22 p.m. and lasted ten minutes. Exh. 8. Mishkin testified that after this phone call, she then called Freundlich to advise him that the appearance was not as routine as she had been led to believe:
I immediately hung up and then called Mr. Freundlich that his client's case is more complex than Mr. Freundlich had advised me it would be and therefore I would ask for an additional fee. I then billed him an additional fee which was actually one of [the] invoices that was included in the exhibit of my answer to the disciplinary complaint that Mr. Savitt brought against me....
Tr. 87:14–24 (Feb. 18, 2014). The phone call with Freundlich occurred at 12:32 p.m., which is exactly when the ten-minute phone call to Savitt would have ended. Exh. 8. Mishkin made a final two-minute phone call to Savitt's number at 1:09 p.m, which, according to Mishkin's time line, would have been after Judge Cohen so-ordered the stipulation. Id.
Mishkin also stated that far from being an unknown rogue attorney, she appeared for Savitt on another case, also through Per Diem Services, captioned Linden v. Kaulami. This appearance was made mere days before her appearance in this litigation. Id. at Tr. 94:24–95:3. The Court repeatedly asked Savitt whether he had been involved in the Linden action in which Mishkin claimed to have appeared for him. Savitt first hedged by stating that he did not recall the case. Id. at Tr. 95:4–6. The Court pressed Savitt again, which resulted in the following exchange:
THE COURT: Is that [Mishkin's appearance for him in Linden ] true?
MR. SAVITT: You Honor, I have no recollection of who a Linden is or who she is.
THE COURT: You never heard of the case before?
MR. SAVITT: I never heard of Linden, I never heard of Mishkin. I never hired her.
THE WITNESS: L–I–N–D–E–N, your client.
Id. at Tr. 95:16–22 (emphasis added ). Given the certainty of Mishkin's pronouncement that Linden was Savitt's client, the Court asked Savitt yet again whether he knew about this alleged lawsuit:
THE COURT: Have you ever heard of this Linden case?
MR. SAVITT: No. You asked me three times. I told you no and I never heard of her before this case.
Tr. 98:24–99:2 (Feb. 18, 2014). After the February 18, 2014 hearing, the Court secured a transcript of proceedings for an October 12, 2006 preliminary conference in Linden. Exh. 20. The transcript, which is discussed below, confirmed that Savitt was counsel for Kama Linden and that Mishkin, as she testified, appeared on Savitt's behalf in the Linden action seven days before her October 19, 2006 appearance in this proceeding. Id.
The Court also challenged Savitt on his apparent attempt to bootstrap his application to vacate the stipulated money judgment by disclosing an ethics complaint Savitt filed against Mishkin with the Departmental Disciplinary Committee. Tr. 72:15–19 (Feb. 18, 2014). As noted during the sanctions hearing, Savitt's self-serving ethics complaint lacks any probative value. Savitt was neither able to legally justify his public dissemination of the confidential records relating to this ethics complaint; nor, could Savitt provide any basis for attempting to cross-examine Mishkin using her own confidential submission to the Departmental Disciplinary Committee. Id. at Tr. 96:2–14.
Savitt asserted during the sanctions hearing that all of his contemporaneous documents were destroyed when he was wrongfully evicted from a storage locker. Id. at Tr. 18:4–7.
When the Court raised the issue of Savitt's failure to identify probative documentary evidence supporting his position, Savitt sought to rely on certain communications he had with Samson Freundlich of Per Diem Services. The documents Savitt referenced consist of an email dated May 16, 2013, and letter dated July 22, 2013. Exh. 7. Both these documents are unsworn and therefore do not constitute probative evidence. See Tatti v. Cummings, 193 A.D.2d 596, 506 (2d Dep't 1993). Had they been sworn, the correspondence would in any event have been of limited use. The most that can be drawn from them is that Freundlich was unable to locate documents. For instance, Freundlich states in his May 16 email that he is surprised to hear from Savitt after the passage of approximately seven years and declares that he had no documents relating to Mishkin's appearance in this proceeding. Exh. 7. Notably, this email was written by Freundlich in response to Savitt's correspondence to Freundlich stating that Savitt had “no record of ever contacting Per Diem Services for this matter and Ms. Mishkin has no supporting documents that you ever contracted her on my behalf.” Savitt Reply Affirmation dated June 4, 2013, Exh. B.
Despite Savitt's assurance to Freundlich, Mishkin did have records relating to her appearance. Although they were missing from the court file, Mishkin resubmitted a copy of her bill to Per Diem Services for the disputed court appearance and her telephone records covering the time period in question. Exh. 8. On October 18, 2006, two phone calls took place between Mishkin and Freundlich (Per Diem Services' phone number is on the May 16, 2013 email) and another the following day. Id. On October 19, a call to Freundlich is sandwiched between calls Mishkin made to Savitt's number and, consistent with her testimony, took place immediately following the ten-minute call in which Mishkin claims to have read the entire settlement agreement to Savitt. Exh. 8. Mishkin testified that she suspects that Freundlich falsely disclaimed knowledge of the per diem assignment because Savitt had previously threatened to file an ethics complaint against him. Id. at Tr. 89:1–14 (Feb. 18, 2014). Regardless, this issue exceeds this Court limited review.
A number of judicial decisions critical of Savitt were also relevant to resolving the sanctions issue. The Court wanted to obtain Savitt's input on the background regarding the decisions. In addition to decisions issued in Daniel Express and Epinard, which are mentioned above, the Court asked Savitt about the following decisions: Exh. 15, Savitt v. MBNA America Bank, 2003 WL 462439 (Sup.Ct. Conn Feb. 5, 2003) (Lager, J.); Exh. 16, Savitt v. Falcinelli, Index No. 603755/05 (Sup.Ct., N.Y. County Jan. 7, 2009) (Kornreich, J.); Exh. 17, Savitt v. Estate of Nicholas Passantino, 41 Misc.3d 1219(A) (Sup.Ct., N.Y. County Oct. 11, 2013) (Ling–Cohan, J.); Exh. 18, Cooper v. Mansfield, 6 Misc.3d 402 (Sup.Ct., N.Y. County 2004) (Smith, J). These decisions, together with additional relevant decisions, will be addressed below. They paint a disturbing picture of Savitt's litigation conduct over the past decade.
F. The March 18, 2014 Hearing on Attorneys' Fees
On March 18, 2014, the Court conducted an attorneys' fees hearing to address the amount of fees that would be awarded should Tribeca's cross-motion be granted. At the commencement of the proceedings, Savitt complained, for the first time, that he believed that the undersigned was biased and should be recused. The basis Savitt articulated was that he was purportedly unaware that the February 18, 2014 court appearance was going to address the issue of sanctions. Tr. 3:5–15 (Mar. 18, 2014) (“I wasn't quite sure what the last hearing was, but now I'm finding out it was a hearing for sanctions”). The Court noted that the scheduling order, which was marked as Exhibit 1 and read into the record, clearly stated that the February 18 court appearance was to address “the possible imposition of sanctions against Savitt in accordance with 22 N.Y.C.R .R. 130–1.1.” Id. at Tr. 3:20–4:16. Savitt's oral application for the undesigned to recuse himself was denied. See People v. Moreno, 70 N.Y.2d 403, 405 (1987) (“Absent a legal disqualification .... a Trial Judge is the sole arbiter of recusal.”).
The Court then gave Savitt the opportunity to address supplemental items, such as the transcript documenting Mishkin's appearance on Savitt's behalf in Linden. Exh. 20. Savitt was initially reminded of his repeated assertions that Mishkin was a complete stranger with whom he had no interactions:
THE COURT: ... Now you said Ms. Mishkin was a stranger to you, you had never talked to her before, you never saw her before, you had nothing to do with her before, right?
MR. SAVITT: Correct.
Tr. 7:21–25 (Mar. 18, 2014). When confronted with the official transcript of proceedings for the October 12, 2006 preliminary conference in Linden, Savitt not only refused to concede that this occurred while he was attorney of record, but he also would not even admit to having filed the complaint in that action. Id. at Tr. 15:24:16:4. This resulted in the Court's marking into evidence the complaint and an affirmation from the Linden court file. Id. at Tr. 16:25–17:1, Tr. 18:19–22. It was only after the complaint, which Savitt signed, was marked into evidence as Exhibit 21 that he conceded to having filed the pleading. Id. at Tr. 17:21–18:12. The Court then had Savitt identify his affirmation, dated December 13, 2007, which was marked as Exhibit 22. Id. at 18:25:19:13. Even when faced with this documentation, Savitt still claimed that Mishkin did not appear in Linden with his knowledge and theorized that his client must have hired Mishkin, as a per diem attorney, to appear because his client was having trouble paying her legal bill. Id. at Tr. 10:15–25.
After Savitt refused to concede, during the March 18, 2014 appearance, that Mishkin appeared on his behalf in Linden, the Court secured a transcript of proceedings for a February 22, 2007 compliance conference. This is the court appearance in Linden that immediately followed the preliminary conference at which Mishkin had appeared. On February 22, 2007, Savitt personally appeared at that compliance conference and made the following statement:
I guess at the last hearing an associate from my office was here, I was told to reserve those same demands for documents, which I did.
Tr. 3:2–4 (Feb. 22, 2007) (emphasis added), transcript of proceedings in Linden. Putting aside Savitt's misrepresentation to Justice Gische that Mishkin was an “associate” from his office, he did not claim that Mishkin was an unknown attorney appearing without his knowledge or consent. Moreover, Savitt's statement that he was “told to reserve those same demands for documents, which I did,” references Justice Gische's earlier directive to Mishkin at the preliminary conference that “[a]ny prior requests, [Savitt's] going to have to resend.” Exh. 20 at Tr. 9:9–10 (Oct. 12, 2006).
The Court takes judicial notice of the official court reporter transcript in Linden for the October 12, 2006 and February 22, 2007 court appearances.
This Court also requested that Savitt address his continued reliance on an alleged oral modification of his lease when he unsuccessfully advanced the same argument in another action as counsel for a former tenant. In Tosi, the Hon. Robert R. Reed concluded, after trial, that the standard “no waiver” clause at issue in that action, which is similar to the one contained in Savitt's lease with Tribeca (Exh. 2), could not be orally modified to permit an asserted oral agreement to terminate a lease early with a waiver of rent due under the contract. Exh. 23a. Thereafter, in a subsequent decision relating to damages, Judge Reed awarded the landlord a money judgment in the amount of $38,527:
The matter is notable for the fact that it is a former tenant that here has been so doggedly pursuing return of a security deposit after having abandoned the subject premises early before the conclusion of the lease without having obtained written permission from the landlord to do so —and in contravention of the express terms of the applicable lease. The matter is notable also in that such former tenant evidently refused more than one overture to settle this matter on what this Court deems extremely favorable terms, to wit, defendants offered at least twice to return plaintiff's security deposit and to discontinue its counterclaims with prejudice (once on July 21, 2010 and then again at a final conference on the day the trial began). Plaintiff stubbornly refused—evidently hoping to establish his entitlement to recover attorney's fees upon presentation of his case. That gamble proved to be disastrous in light of this Court's April 2, 2013 Decision/Order.
Exh. 23b, Tosi v. Yorkshire Towers GP Co., LLC, 2013 N.Y. Slip Op. 52317(U), 2013 WL 8482182, at *1 (Civ.Ct., N.Y. County May 7, 2013) (Reed, J.) (emphasis in original). Incredibly, even though the legal ability to agree orally to a modification of the lease terms when the lease contained a “no waiver” provision was the primary issue in Tosi, Savitt claims that he never researched the issue. Tr. 24:10 (Mar. 18, 2014).
Although this Court already addressed the issue on February 18, 2014, when Savitt again asserted that Mishkin appeared on October 19, 2006 without his knowledge, the Court gave Savitt another opportunity to provide a plausible explanation for her appearance:
You have yet to even give a reason why [Mishkin] would possibly—a per diem lawyer[—]possibly appear in court, settle a case for which she has no reason to appear, how she called you on your cell phone when that phone number was not on any of the blue backs, any of the other things. You were going officially by a different phone number. You've yet to give a plausible explanation.
You have another chance. I wanted to make sure that you knew about these additional documents so that, to the extent you want to talk about them and give an additional thought-out conclusion, you're free to do so.
Id. at Tr. 60:15–61:2. Savitt did not take this opportunity to provide an explanation. Instead, Savitt complained that he did not receive responses to all his post-hearing subpoenas. Id . at Tr. 61:3–6.
Despite the defective nature of Savitt's subpoenas, Tribeca and Related apparently conducted a review of their records and produced the documents attached to Tribeca's notice to admit, which was marked as Exhibit 25.
Savitt's complaint regarding his subpoenas resulted in a conversation that added emphasis to the frivolity of his conduct during this litigation. By way of background, this Court permitted Savitt to serve post-hearing subpoenas. Tr. 129:14–21 (Feb. 18, 2014). In doing so, this Court cautioned Savitt that he was not permitted to sign the subpoenas because he was a party to this litigation:
MR. SAVITT: ... If I may inquire, do I need to have those subpoenas so ordered by your Honor?
THE COURT: Yes, you're not allowed to sign the subpoenas yourself as a party. You can submit the subpoena in to be so ordered by the Court.
MR. SAVITT: Anybody can do that.
THE COURT: You can submit it in and the clerk will stamp it I believe. You're not allow to sign.
Id. at Tr. 130:19–131:1. This instruction should have been unnecessary because Savitt, as noted above, previously served a defective subpoena on Mishkin that he withdrew:
THE COURT: You withdrew [the earlier subpoena] because it was defective?
MR. SAVITT: Yes.
THE COURT: And the defective nature of it was that you signed it?
MR. SAVITT: Correct.
Tr. 64:15:20 (Mar. 18, 2014).
Despite the foregoing motion practice and explicit instructions, Savitt served defective post-hearing subpoenas signed by himself. Id. at Tr. 61:11–16. Savitt initially claimed that he did not sign the subpoenas. Id. at Tr. 66:2–4. Savitt admitted to signing them only when the undersigned pointed out his signature on the documents. Id. at Tr. 66:5–15. Savitt felt aggrieved that Judge Schecter inquired as to the basis of his application rather than so-ordering his subpoenas. Id. at Tr. 65:8–19, 67:2–11, Tr. 68:14–21. Under the circumstances, Savitt should have submitted the unsigned subpoenas together with an answer to Judge Schecter's question. Id. at Tr. 65:23–66:22. Instead, he served multiple defective subpoenas. Rather than accepting responsibility, Savitt stated that he was going to obtain an explanation from Judge Schecter for not signing his subpoenas. Id. at Tr. 71:11–12 (“I will go to Judge Schecter and I will get an answer.”).
The Court also asked Savitt to address a letter dated July 20, 2010 located by Related in response to one his post-hearing subpoenas. Id. at Tr. 21:16–22:5. Savitt's letter demanded information pertaining to the money judgment entered against him in the instant action. See Exh. 25, Notice to Admit, dated March 14, 2014, Exh. A. He also represented in the letter that allegedly false information regarding this debt has been improperly placed on his credit report since 2006. Id. Savitt's statement appears to conflict with a representation he made about his credit report when the undersigned asked about the circumstances surrounding his vacating of a default money judgment entered against him in Capital One Bank v. Savitt, Index No. CV–034099/08 (Civ.Ct., N.Y. County). Tr. 70:18 (Feb. 18, 2014) (“It was never on a credit report.”). Savitt claimed that he misdated the letter. Tr. 22:16–17 (Mar. 18, 2014). This representation appears to be supported by a generic fax banner bearing a 2012 date printed on the top of the faxed letter itself. Exh. 25, Exh. A.
Savitt had the default judgment in Capital One vacated on the ground that the credit card was fraudulently obtained. Tr. 70:2–5 (Feb. 18, 2014). Although the handwritten credit card application underlying the allegedly fraudulently obtained credit card has a signature that closely resembles Savitt's signature contained on documents he filed in various actions, this issue is beyond the Court's review in this proceeding.
The Court asked Savitt whether there was an alternative explanation about his failure to recall information. Tr. at 39: 19–23 (Mar. 18, 2014). Savitt represented that he was in a car accident on July 1, 2008, which resulted in a significant head injury that negatively impacted his ability to recall events before that time period. Id. at Tr. 80:7–18. This was the first mention of Savitt's alleged injury. The Court agreed that it would take such a disclosure into account in rendering a decision, but that corroborating documentation was required: “[I]f you tell me that you have a mental health issue because you were in a car accident, that's something for me to consider. But I would need to have significant documentation to prove that, in fact, ... was the issue because a person would normally remember the things that you're not remembering.” Id. at Tr. 80:24–81:9. The Court anticipated that Savitt's post-hearing submission would include documentation regarding this head injury. No such submission was made.
The final item addressed on March 18 was the issue of the amount of attorneys' fees to be awarded should the Court determine, in conformance with the parties' lease, that Tribeca had prevailing-party status. Nahins and Jeffrey Seiden testified on Tribeca's behalf. As part of their testimony, contemporaneous billing records for the services performed in this proceeding were identified and admitted into evidence. Exh. 24. Seiden also testified that Savitt appeared, referencing his contemporaneous billing entry for September 18, 2006. Seiden discussed the different notations he makes in the ordinary course of business, such as when an attorney or tenant appears. Tr. 94:19–95:11 (Mar. 18, 2014). Seiden testified that, with the joinder of issue having taking place, he would have taken a default had Savitt, or an attorney representing him, failed to appear. Id. at Tr. 95:9–11. Nahins performed the bulk of the legal work related to Savitt's efforts to vacate the stipulated judgment. Exh. 24. Nahins represented that his firm charges companies affiliated with Related a below-market rate for legal services because of the volume of work it performs for them. Tr. 104: 3–7 (Mar. 18, 2014). Savitt did not substantively challenge the reasonableness of the rate petitioner's counsel charged or the time spent performing legal work. Id. at Tr.112:8–11.
G. Post Sanctions Hearing Submissions
During the February 18 court appearance, the Court indicated that it would give Savitt, as he requested, 45 days to submit any additional material that he wanted the Court to consider on the issue of sanctions. Savitt had already claimed that the documents he needed to support his factual positions were destroyed. Tr. 18:2–7 (Feb. 18, 2014) (“All the records that I had that related to this are gone, went away with that storage locker.”). During the March 18 hearing, Savitt asserted that he was having difficulty completing the post-hearing submission because he did not have access to certain court files located in the undersigned's chambers. Tr. 130:19–131:15 (Mar. 18, 2014).
This Court issued an order two days later that both extended Savitt's time to submit a post-hearing submission and formalized access to the court records he requested:
On March 18, 2014, Respondent Richard Savitt requested access to certain court files for cases that have been requisitioned by the undersigned and held in chambers. The requested files will be made available for Savitt's supervised review and photocopying of documents on March 27, 2014 in Room 225 (Window 9). Savitt's deadline for proffering a post-hearing submission on the issue of sanctions is sua sponte extended to April 13, 2014.
Order dated March 20, 2014. The access order was issued as a precautionary measure because, as noted above, documents are missing from the court file. The reason these documents are missing has never been determined. Therefore, the court implemented a review protocol that would be apply to any individual who wanted to review and copy documents from these case files.
On March 27, 2014, Savitt reviewed and copied records from various court files. The clerk supervising the document review was initially unable to locate the hearing exhibits, which were contained in a separate file folder, and thus Savitt was therefore not provided access to them. Upon locating the hearing exhibits, a clerk supervisor unsuccessfully attempted to contact Savitt by telephone. With the clerk unable to communicate with Savitt, this Court issued a written order providing additional access to the court files, including the hearing exhibits:
On February 18, Savitt mentioned that he was unable to obtain a copy of the subpoena Judge Samuels issued in Daniel Express. Tr. 123:21–25 (Feb. 18, 2014). He was apparently unaware that the subpoena and bank records were located in the subpoenaed records room, not the court file. Due to Savitt's professed difficulty in obtaining these documents, the Court had a copy of the records added to the Daniel Express court file in advance of Savitt's March 27, 2014 review. The original production of records remains in the subpoenaed records room.
On March 18, 2014, Respondent Richard Savitt requested access to certain court files for cases that have been requisitioned by the undersigned and held in chambers. Savitt conducted a review of certain documents on March 27, 2014, but requested access to the exhibits used during the hearing, which the attending records clerk was unable to locate. As such, additional access to review the court files, including the exhibits, shall be provided on April 3, 2014 and April 4, 2014 in Room 225 (Window 9).
Order dated April 1, 2014. That same day, the order was sent directly to Savitt and opposing counsel by electronic mail and regular mail. The Court obtained Savitt's email address (rsavitt@savittlawfirm.com) from his blueback.
On April 11, 2014, 10 days after sending Savitt the April 1, 2014 order providing him additional access to court records, the Court received a letter from Savitt indicating that he would not be submitting a post-hearing submission. Savitt claimed in this correspondence that on March 27, 2014 he was deprived of the opportunity to review and copy the exhibits used in the hearings. His April 11 letter failed to address any efforts post March 27 this Court made to give him access to the files. Savitt made no reference to the unanswered telephone messages from the supervising clerk or the April 1, 2014 order sent to him electronically and in hard copy. Savitt also requested in his April 11 letter that the Court refrain from deciding the instant matter until a grievance he claimed to have filed with the New York State Commission on Judicial Conduct (“Commission”) was resolved. Given the foregoing, the Court concludes that Savitt has decided not to avail himself of the opportunity to make a post-hearing submission on the sanctions issue. The issue of sanctions will therefore be decided without any additional material submitted from him.
Legal Discussion
I. Savitt's Complaint to the New York State Commission on Judicial Conduct
As an initial matter, the Court is required to determine whether Savitt's statement in his April 11, 2014 letter that he has filed a complaint with the Commission against the undersigned requires this Court to recuse itself from this matter. The Commission is the state agency tasked by the New York State Constitution with ensuring the ethical conduct of judges. NY Const. Art. 6, § 22. The Advisory Committee on Judicial Ethics has determined that “disqualification is not mandated simply because a litigant has complained about the judge to the Commission unless the judge believes he/she can no longer be impartial.” NY Adv. Op. 13–75 (N.Y. Adv. Comm. Jud. Eth. Jul. 29, 2013); NY Jud. Adv. Op. 94–94, 1994 WL 907343 (N.Y. Adv. Comm. Jud. Eth. Nov. 15, 1994) (finding that judges are not required to recuse themselves simply because a complaint has been made to the Commission, provided that the judges feels that they can be impartial). Although the Commission will undoubtedly provide Savitt's complaint the attention that it deserves, as it does with all grievances, its review will not impact pending litigation. See, e.g., Robert H. Tembeckjian, Policy Statement of the New York State Commission on Judicial Conduct, dated Jun. 17, 2010, at 2 (“As a general practice, the Commission refrains from communicating with a judge regarding a pending case, precisely to protect the judiciary's independence and to avoid being used by a complainant to force recusal”). This Court has not seen a copy of Savitt's complaint and has not been contacted by the Commission.
Based upon the foregoing, the Court must determine whether, having been informed by Savitt that he has filed a complaint with the Commission, that this Court believes that it can decide this case impartially. The Court is aware that Savitt has repeatedly revealed the existence of a complaint he filed against Mishkin with the Departmental Disciplinary Committee. Further, in Davler Media Group., LLC v. Astro Gallery of Gems, Index No. 060615/09 (Civ. Ct ., N.Y. County), which Savitt referenced in his testimony, Tr. 25:20–22 (Feb. 18, 2014), he threatened Judge Samuels with filing a complaint with the Commission: “I don't understand how Your Honor, based upon her prior ruling, can possibly be fair and reasonable in a case which I am involved, based upon her prior ruling, and knowing there is going to be a formal grievance filed.” Tr. 2:3 –3:9 (Jan. 14, 2014), transcript of proceedings in Davler Media. Savitt made this threat after informing Judge Samuels that he refrained from filing a complaint with the Commission because she recused herself in this very action:
Certainly, I have yet to file a formal grievance against Your Honor. But, certainly, I thought this was over since you recused yourself on the last case we were on, which was a case against me personally where an attorney, a rogue attorney, showed up in court, answered a judgment on my behalf against me when she was never hired by me, never known by me, never knew who she was, never authorized her.
Id. at Tr. 2:16–17.
Given the foregoing, it is not surprising to learn from Savitt that he filed a complaint with the Commission. Its existence will have no impact on the undersigned's ability to remain impartial in resolving the issues pending before this Court. Mokay v. Mokay, 111 AD3d 1175, 1178 (3d Dep't 2013) (“This is not the first time during the pendency of this action that defendant has alleged, after an unfavorable decision, that a judge should no longer hear cases involving him.”).
II. The Lack of a Meritorious Legal Basis For Granting The Requested Relief
On December 3, 2013, Savitt failed to appear at the oral argument of his motion to vacate the August 16, 2013 order and Tribeca's cross-motion to impose attorneys' fees. Savitt's failure to appear at oral argument is a basis for denying his motion. Savitt would later assert during the sanctions hearing that he did appear on this date, a misrepresentation addressed in the sanctions section below.
Even if this Court were to set aside Savitt's failure to appear on December 3, 2013, he has failed to demonstrate a reasonable excuse for not appearing on August 16, 2013. His failure to demonstrate a reasonable excuse for his original default is an independent basis for denying his motion. See Raoul Charbonneau Custom Logging, Inc. v. Belanger, 111 A.D.2d 583, 583 (2d Dep't 1985) (holding that a failure to demonstrate a reasonable excuse is basis for denying motion to vacate). The Court rejects the reasonableness of Savitt's excuse for three separate reasons: (1) Savitt's reason for missing the court appearance is contained in an unexecuted “affidavit”, (2) there is no demonstration that Judge Samuels abused her discretion in not adjourning the matter to a date other than August 16, and (3) Savitt's proffered excuse for missing the court appearance is unreasonable. These three reasons are discussed below.
First, Savitt's excuse for failing to appear on August 16, 2013 is contained in a so-called affidavit that is neither signed nor notarized. Exh. 4. An unsworn statement, which is all Savitt's submission can be considered, lacks probative value. See, e.g., Yonkers Ave. Dodge, Inc. v. BZ Results, LLC, 95 AD3d 774, 775 (1st Dep't 2012) (“[T]he letter was unsigned and unsworn, and therefore devoid of probative value.”). Savitt claimed during the sanctions hearing to have submitted an executed affidavit, but never provided one to the Court and also failed to explain adequately how the Court's copy, complete with exhibits, was not executed. Tr. 4:2–6:19 (Feb. 18, 2014).
Second, Savitt has not demonstrated that Judge Samuels abused her discretion in declining to grant his opposed adjournment application. Diamond v. Diamante, 57 AD3d 826, 827 (2d Dep't 2008), quoting Matter of Anthony M., 63 N.Y.2d 270, 283 (1984) (“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court.”). Savitt's requested adjournment of the August 16 appearance was denied. Savitt asserts in his motion papers that he “explained to Judge Samuels” that he was unavailable on August 16 because “I had two (2) clients coming in from Charlotte, N.C.” Exh. 4 at ¶ 51. He also claims that he “was not in NYC and was unable to find any other lawyer to attend the hearing.” Id. at ¶ 53. Petitioner's counsel challenged the veracity of Savitt's claimed representations to Judge Samuels. Nahins Aff. at ¶ 5. The August 15 transcript revealed that Savitt was not truthful about what he “explained” to Judge Samuels:
MR. SAVITT: I have some people coming in from out of town.
* * * *
MR. SAVITT: Your Honor, is it possible to have it set down next week?
THE COURT: I'm doing it tomorrow and that's it. You can make whatever applications you want tomorrow with that judge.
* * * *
MR. SAVITT: What courtroom is that?
THE COURT: That's Special Term I where this came from. This is room 325, 9:30 a.m., and today is the 15th.
Tr. 20:9–10; 21:2–20 (Aug. 15, 2013) (emphasis added). Savitt's statement that he had “some people coming from out of town” is different from what he claims to have represented in his motion papers. Judge Samuels' decision not to change a court date because Savitt allegedly had out-of-town guests is not an abuse of discretion. Sunday Corner, Inc. v. Mandarin Exp., Inc., 122 Misc.2d 203, 205 (Civ.Ct., N.Y. County 1983) (“The court, not trial counsel's schedule, must govern the calendaring of cases.”).
Third, Savitt's proffered “excuse” is unreasonable. On July 15, 2013, when the August 15, 2013 court appearance was initially scheduled, Savitt unsuccessfully asked that it be conducted the following week without providing a reason for his request. Tr. 49:6 (Jul. 23, 2013) (“Can we go to next week 19th or 20th?”). Then, when the matter was adjourned from August 15 to August 16, 2013, Savitt again asked that it be adjourned until the week of August 19, 2013, with his sole excuse that he had “some people coming in from out of town.” Tr. 20:9–10 (Aug. 15, 2013). In his motion papers, Savitt stated that it was his meeting clients from Charlotte, North Carolina, that resulted in his not being in New York City. Exh. 4 at ¶ 51. During the sanctions hearing, Savitt testified that he was meeting these unidentified clients in the “Hamptons,” which is located in Suffolk County, New York. Tr. 113:7–114:5 (Feb. 18, 2014).
Savitt was required to treat a known court appearance as taking precedence over a meeting with unnamed clients in a beach community in August. Savitt's excuse is not in accordance with the applicable court rule, which excuses counsel who are actually engaged in a court handling another matter: “Engagement of counsel shall mean actual engagement on trial or in argument before any State or Federal trial or appellate court.” 22 N.Y.C.R.R. 125.1 ; Tr. 121:18–22 (Feb. 18, 2014). Despite being a practicing attorney for over two decades, Savitt claimed during the sanctions hearing that he was unaware of the meaning of actual engagement or the court rule governing the priority of scheduling conflicts. Tr. 114:20–115:12 (Feb. 18, 2014). Savitt's alleged client meeting took place on Thursday night; he had time to return to New York City from Suffolk County to handle his Friday morning court appearance. Savitt's knowing failure to appear on August 16, 2013 for continued court proceedings in this action lacked a reasonable basis and is therefore not excused.
The Court is also permitted to consider Savitt's defaults in other actions in concluding that Savitt's failure to appear on August, 16, 2013 was inexcusable and “evidences a pattern of dilatory behavior.” Metral v. Bonifacio, 309 A.D.2d 724, 724 (1st Dep't 2003). From this Court's sample review of court records and electronic databases, Savitt has defaulted, either as counsel or as a party, in, at a minium, the following additional five matters: Exh. 16, Falcinelli (denying Savitt's motion to vacate after discussing at length the unreasonableness of his failure to appear at oral argument); Exh. 10b, Daniel Express (denying Savitt's motion to vacate a default judgment based on his unreasonable failure to appear at oral argument); Automation Graphics, Inc. v. Candid Litho Printing, Ltd, 2012 N.Y. Slip Op. 52506(U), 2012 WL 10819363, at *1 (Sup.Ct., N.Y. County May 22, 2011) (Mendez, J.) (“Plaintiff [represented by Savitt] did not appear at oral argument on its motion for summary judgment.”); Cilione v. Ophthalmic Consultants Cornel and Refractive Surgery Associates, P.C., 2005 N.Y. Slip Op. 52409(U), 2005 WL 7143154, at *1 (Sup.Ct., N.Y. County Aug. 11, 2005) (Schlesinger, J.) (“Although duly served with the motion, plaintiff [represented by Savitt], has defaulted.”); Exh. 23b, Tosi (noting Savitt's multiple vacated defaults). Savitt's history of failing to appear at scheduled court appearances supports the Court's conclusion that his failure to appear on August 16, 2013 was unreasonable.
Savitt has also failed to demonstrate a meritorious basis for obtaining relief from the prior orders. Savitt's motions, heard by Judges Samuels and Schecter, respectively, were not supported by probative evidence. Although Savitt is an attorney, he is prohibited from using affirmations and must instead use affidavits when he is a party. It has long been held that “those persons who are statutorily allowed to use such affirmations cannot do so when they are a party to an action.” Harris v. Krauss, 87 AD3d 469, 469 (1st Dep't 2011), quoting Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801 (1981).
Savitt does not dispute that he used affirmations in support of his earlier motions. Instead, he asserts that Judge Samuels essentially waived the defective nature of his submissions. This argument lacks merit for two reasons. First, improper affirmations are legal ities that must be disregarded. LaRusso v. Katz, 30 AD3d 240, 243 (1st Dep't 2006) (“Since attorney Katz was a named defendant in this action, his submission of an affirmation instead of an affidavit was improper, and its contents should have been disregarded.”) (internal citation and quotations omitted). Second, the instant motion seeks to vacate an order issued by Judge Schecter, not Judge Samuels. Savitt admitted that Judge Schecter, who would have performed a de novo review of the earlier motion, did not grant any relief from his improper use of affirmations. Tr. 46:13–19, 47:11–16(Feb. 18, 2014).
In any event, Savitt's failure to submit affidavits in support of his earlier motions cannot be viewed as unwitting in nature, because he has been previously rebuked for using them despite being a party to litigation. Exh. 18, Epinard, 2004 WL 6339870, at *1. (“Plaintiff Savitt attached his affirmation' in support of the motion. However, as a party' he is required to submit an affidavit.”); see also Daniel Express, supra, at 3 (“In support of this application plaintiff provides affirmations, instead of the required affidavits.”); Savitt v. Falcinelli, Index No. 603755/05 (Sup.Ct., N.Y. County Nov. 24, 2009) (Kornreich, J.) (noting Savitt's misuse of an affirmation despite being a party).
Putting aside the absence of probative submissions, Savitt has not demonstrated a basis for relief from the so-ordered stipulation and related judgments entered pursuant to that agreement. Stipulations of settlement are judicially favored, particularly “open court” settlements. Hallock v. State of New York, 64 N.Y.2d 224, 230 (2d Dep't 2001). Settlements will not be set aside absent a showing sufficient to set aside a contract, such as fraud, duress, overreaching, or mistake. Town of Clarkstown v. MRO Pump and Tank Inc., 287 A.D.2d 497, 498 (2d Dep't 2001), citing Hallock, 64 N.Y.2d at 230;Zwirn v. Zwirn, 153 A.D.2d 854, 855 (2d Dep't 1989). Judge Samuels rejected Savitt's factual assertions, unsupported by any probative documentary evidence, because his claims were inherently implausible and therefore incapable of meeting his burden of proof. With the benefit of the testimony elicited at the hearings and relevant documentary evidence, this Court also finds that Savitt has failed to meet his burden of proof.
While unnecessary for resolving Savitt's motion, the Court's conclusion that Savitt lied about multiple material facts permits it to reject as lacking in credibility all of Savitt's testimony:
The doctrine of falsus in uno allows the trier of fact to completely disregard the testimony of a witness who has wilfully testified falsely as to any material fact. This doctrine is grounded upon the principle that one who testifies falsely about one material fact may well have testified falsely about everything.
Ryan v. Prescott, 38 Misc.3d 1234(A), at *2, 2013 N.Y. Slip Op. 50388(U) (Sup.Ct., Albany County 2013).
For instance, the Court finds no merit in Savitt's contention that he did not appear on September 27, 2006, the initial court appearance in this proceeding. Savitt personally filed his answer. Exh. 12a. at ¶ 9. The clerk accepting the filed pleading would have informed Savitt of the date he needed to appear in court. Savitt provides no explanation for why he did not receive this standard notification. The contemporaneous billing records of petitioner's counsel indicate that Savitt appeared on September 27. Exh. 24. The notations on the court file jacket for this appearance do not indicate that Savitt defaulted in appearing on that date. Seiden, the attorney for petitioner who attended this court conference, attested that had Savitt not appeared Seiden would have taken a default against him on petitioner's behalf. Tr. 95:9–11 (Mar. 18, 2014). Based on the credible evidence, the Court concludes that Savitt appeared on September 27, 2006 despite his representation to the contrary.
Savitt's factual assertions regarding the October 19, 2006 court appearance are, likewise, rejected. This Court has had the opportunity to consider Savitt's and Mishkin's competing testimony and finds Mishkin's testimony credible. Mishkin's testimony was supported by her phone records and billing for the disputed court appearance. It was also supported by transcripts this Court obtained relating to Mishkin's appearance on Savitt's behalf in another litigation a week before she appeared for him in this action. This Court finds that Savitt's testimony lacked credibility. Savitt repeatedly lied about never having communicated with Mishkin. Savitt provided an absurd explanation for his multiple phone calls with Mishkin during the disputed court appearance. When Savitt was later confronted with a transcript showing that Mishkin appeared for him a week earlier in another case, Savitt advanced yet another fantastical tale that his client must have hired Mishkin directly despite Savitt being the only attorney to represent the plaintiff in that case. Although he could have submitted supporting material after the hearing, Savitt failed to submit a single document. Savitt's factual assertions regarding the October 19 court appearance are fabrications.
The Court also finds no basis to credit the existence of a purported oral settlement. Savitt has failed to provide any semblance of detail regarding the circumstances surrounding a purported settlement; he does not even identify the name of the representative with whom the agreement was purportedly reached. Moreover, such an alleged agreement would be unethical to negotiate; Tribeca was represented by counsel (DR 7–104 ). It was also completely unenforceable (CPLR 2104 ) and violated the express standard terms contained in his lease (Exh. 2 at ¶¶ 16, 17, 28). Savitt further fails to explain how Mishkin knew to seek a discontinuance against Luciani, an individual Savitt allegedly claimed in his answer “not to know” (Answer at ¶ 6) but who would later admit was a close childhood friend. Tr. 110:12–16 (Feb. 18, 2014). He also fails to explain how Mishkin knew to include in the stipulation a provision allowing Savitt to provide documentation supporting his contention that some of the rental arrears had actually been paid, a claim Savitt continued to advance in his motion seeking to vacate the 2006 money judgment.
DR 7–104 (22 N.Y.C.R.R. 1200.35), applicable to attorney conduct in 2006 but since repealed, directs that an attorney shall not “[c]ommunicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
Paragraph 6 of the answer states that “Defendant [sic] is unaware of anyone by the name of Gary Luciano' and has no idea why his name appears on the complaint.” Although Gary Luciani's name is misspelled, it is evident why he was named in the complaint. Luciani signed a “good guy” guarantee relating to Savitt's lease. Exh. 2 at 5. Luciani also appears with Savitt as a party in other litigation, including the Epinard and Falcinelli lawsuits referenced above.
Moreover, Savitt's claim that he believed he could orally settle a pending Housing Court litigation outside of court rings hollow. He was twice sued by his immediately preceding landlord for nonpayment. For instance, Spring Partners II was settled by a so-ordered stipulation dated October 29, 2004, which Savitt signed. Savitt also agreed in Spring Partners II to the issuance of a money judgment, possessory judgment and warrant of eviction that was stayed until December 31, 2004. Savitt's lease with Tribeca commenced the next day. Exh. 2. Thus, having settled a nonpayment proceeding commenced by his immediately prior landlord by a so-ordered stipulation, it is incredible for Savitt to claim that he believed that the current proceeding, in which petitioner was represented by counsel, was orally resolved with an unidentified person affiliated with petitioner.
The Court takes judicial notice of the contents of its court files.
Notably, Spring Partners II followed on the heels of a Connecticut lawsuit involving MBNA America Bank, to which Savitt was a party. As with the motion in this case, Savitt claimed that he had not settled the action with MBNA America Bank. The Hon. Linda K. Lager, who presided over that matter, determined after a hearing that Savitt's testimony lacked credibility:
Although Savitt testified that there was no agreement to settle this matter, the court does not credit his testimony .... Moreover, the court must conclude that, as a practicing attorney in both New York and Connecticut, Savitt has experience in negotiating settlements and is sophisticated enough to understand the implications of his conduct and actions.
MBNA, 2003 WL 462439, at *2 (emphasis added). The MBNA court also noted that “[a]lthough Savitt testified that he believed there was no agreement to settle at the time he received the check, Savitt did not offer any evidence that supported his testimony.” Id. Given Savitt's involvement as a party in multiple litigations, the Court finds no basis to disturb the conclusions reached by the judges assigned to this matter when they denied Savitt's original and subsequent motions to vacate the so-ordered stipulation and money judgment.
The Court's finding in this case is consistent with the conclusion reached several months ago when Savitt's assertions were found “inherently incredible.” Zorse v. Stewart Title Eastern Carribean Ltd., 2014 N.Y. Slip Op. 30312(U) 2014 WL 359336 (Sup.Ct., N.Y. County Jan. 14, 2014) (Kornreich, J.). In granting a motion to dismiss, the Hon. Shirley Kornreich rejected Savitt's claimed ignorance of factual developments he asserted years after-the-fact:
Zorse cannot reasonably contend that he (or his attorney Savitt, the original buyer) could not have learned that the funds were not received in 2005, since, as anyone who has ever bought property knows, if the seller does not receive his money (especially the down payment), the transaction will not close. A buyer's claim that he could not have known about problems with a down payment until 8 years after the sale is an “inherently incredible” contention that cannot defeat a motion to dismiss.
Zorse, 2014 WL 359336, at *3. While not a party to this litigation, Luciani, the same person Savitt claimed not to know in his answer in this action, was addressed in Zorse: “Since Luciani played no meaningful role in the underlying events apart from making a down payment, the Court only discusses Savitt's role in the subject real estate transactions.” Id. at *3.
The Court finds Savitt's motion procedurally defective and substantively without merit. His motion to vacate the August 16, 2006 default order is denied.
III. Tribeca's Cross–Motion for Attorney Fees
Tribeca seeks to be declared the prevailing party in this proceeding and, pursuant to Paragraph 20 of the parties' lease (Exh. 2), direct that a money judgment be entered against Savitt for its reasonable attorneys' fees. The lease provision providing for assessing attorneys' fees to a prevailing party to litigation will be enforced against Savitt according to its terms. Bd. of Managers of 55 Walker St. Condo. v. Walker St. LLC, 6 AD3d 279, 280 (1st Dep't 2004). Since this Court finds no merit to Savitt's multiple motions seeking relief from the so-ordered stipulation of settlement and from the judgments entered pursuant to that agreement, the Court finds that Tribeca is the prevailing party in this matter. See, e .g., Lynch v. Leibman, 177 A.D.2d 453, 456 (1st Dep't 1991) (discussing the awarding of attorneys' fees to a prevailing party status in real property proceedings as provided for in the parties' lease).
In determining a reasonable attorneys' fees award, the Court takes into account various factors relevant in fashioning an award, including the time spent on the matter, the complexity of questions involved, the nature of the service provided, the lawyer's experience and reputation and customary fees charged by the other attorneys for such services. Rahmey v. Blum, 95 A.D.2d 294, 299–300 (2d Dep't 1983). In assessing these factors, the Court has considered the credible testimony of two attorneys who handled this matter for petitioner together with contemporaneously maintained time records. Savitt did not substantively challenge the reasonableness of time spent on by petitioner's counsel. Id. at Tr. 112:8–11 (Mar. 18, 2014) (“I'll stipulate to that, your Honor”). Taking the relevant factors into consideration as a whole, the Court finds that $7,940.88 represents reasonable attorneys' fees petitioner expended in litigating this matter through the March 18 court appearance. Despite the absence of an objection by Savitt, this Court nonetheless reduces from this amount the $530 expended by Tribeca in 2006; this Court noted on the record that it reads the so-ordered stipulation as waiving attorneys' fees incurred in securing Savitt's eviction from the premises. Id. at Tr. 104:8–105:13. Accordingly, the Court determines that $7,410.88 represents the recoverable amount of Tribeca's reasonable attorneys' fees, and this sum is awarded to it in accordance with the parties lease (Exh. 2) based on the Court's determination that Tribeca is the prevailing party in this action.
IV. The Court's Sua Sponte Sanctions Motion
After considering the parties' submissions and additional information from court files, the Court determines that the issue of the possible imposition of sanctions against Savitt needs to be addressed. A hearing was scheduled for February 18, 2014 to give Savitt an opportunity to address this Court's concerns. See Order dated January 28, 2014. At the hearing, the Court sought to elicit information relating to several issues, including (a) several of Savitt's apparent misrepresentations relating to factual information provided to this Court, (b) Savitt's disrespectful conduct toward Judge Samuels, (c) Savitt's misuse of affirmations and an unsigned affidavit, and (d) Savitt's failure to appear on multiple court dates. Savitt and Mishkin testified at the hearing, and Savitt provided additional testimony on March 18, 2014. Savitt was also given the opportunity to submit a post-hearing submission but indicated in his April 11, 2014 letter that he would not be making such a submission.
Savitt requested 45 days to submit a post-hearing submission. Tr. 129:14–16 (Feb. 18, 2014). The deadline was sua sponte extended to April 13, 2014 because Savitt requested access to court files held in the undersigned chambers. Orders dated March 20, 2014 and April 1, 2014.
The standard to impose sanctions is set forth in 22 N.Y.C.R.R. 130–1.1, which defines conduct as frivolous if “it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or if it “is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.” Kornblum v. Kornblum, 34 AD3d 749, 751 (2d Dep't 2006). “Sanctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics.” Levy v. Carol Mgmt. Corp., 260 A.D.2d 27, 34 (1st Dep't 1999).
Savitt has displayed an appalling lack of candor: “Nothing could more aptly be described as conduct completely without merit in fact' than the giving of sworn testimony or providing an affidavit, knowing the same to be false, on a material issue.” Sanders v. Copley, 194 A.D.2d 85, 88 (1st Dep't 1993). Moreover, as stated by the First Department in disciplining an attorney:
An attorney is to be held strictly accountable for his statements or conduct which reasonably could have the effect of deceiving or misleading the court in the action to be taken in a matter pending before it. The court is entitled to rely upon the accuracy of any statement of a relevant fact unequivocally made by an attorney in the course of judicial proceedings. So, a deliberate misrepresentation by an attorney of material facts in open court constitutes serious professional misconduct.
Matter of Friedman, 196 A.D.2d 280, 296 (1st Dep't 1994). Savitt has repeatedly made factual assertions that, upon examination, are either untrue or misleading.
Starting with his most recent misrepresentations, Savitt claimed on March 18, 2014 that he was not provided advance notice that sanctions were going to be addressed during the February 18, 2014 court appearance: “I wasn't quite sure what the last hearing was, but now I'm finding out it was a hearing for sanctions.” Tr. 3:5–7 (Mar. 18, 2014). Having articulated the alleged lack of notice, Savitt then claimed that “as your Honor well knows, I feel you have a bias.” Id. at Tr. 3:14–15. This was the first time Savitt ever accused the undersigned of bias. Additionally, Savitt's claim of a lack of notice cannot be reconciled with the January 28, 2014 scheduling order directing his appearance. The scheduling order states:
On March 18, 2014, Savitt repeatedly raised his voice, spoke rapidly and was often disrespectful. See, e.g., id. at Tr. 13:15–17.
The Court is considering the possible imposition of sanctions against Savitt in accordance with 22 N.Y.C.R.R. 130–1.1. Because the issue was not briefed, Savitt will be provided an opportunity to address the Court's concerns at a court conference to be held on February 18, 2014 in Special Term I (Room 325) at 9:30 a.m., which shall be conducted on the record.
Exh. 1. Furthermore, when the matter was first called on February 18, this Court read the contents of this scheduling order into the record and the scheduling order itself was entered into evidence. Tr. 2:1–16 (Feb. 18, 2014). When Savitt was directed by this Court to the contents of the scheduling order, Savitt merely modified his statement by asserting that the appearance was going to be for the motions and “whatever the exact language was, potential motion for sanctions.” Tr. 4:19–22 (Mar. 18, 2014). As the sole purpose in scheduling the February 18 appearance was to give Savitt the opportunity to address what the Court deemed possibly to constitute frivolous conduct, his statement that he was not provided notice that sanctions were being considered lacks candor.
Another misstatement by Savitt is his contention during the sanctions hearing he attended the December 3, 2014 court appearance in which his motion and Tribeca's cross-motion were scheduled to be orally argued. Savitt claimed that when he appeared in court, a clerk informed him that the case was not on the calendar, an assertion that is unsupported by the court's internal docketing system. Savitt's representation is also at odds with the clerk's notation on the file case's file jacket, which states “12/3/13 not.” Tribeca's counsel, who noted that a representative of his client was in attendance, unequivocally disputed Savitt's purported appearance: “No, you were not here.” Tr. at 51:17 (Feb. 18, 2014). The Court then inquired about the identity of the presiding judge on December 3:
Nahins would later represent under oath that Savitt did not appear. Id. at Tr. 108:19–25.
THE COURT: Counsel [Savitt], do you know what Judge was here on the day, on the date in question?
MR. SAVITT: I have no idea.
THE COURT: Well, you should if you were here.
Tr. 52:2–5 (Feb. 18, 2014). The undersigned was the judge presiding in the Special Term I on that date. Savitt's motion was not summarily denied based upon his non-appearance; Tribeca was seeking affirmative relief requiring an analysis of the cross-motion papers before the application could be granted. This Court therefore finds that Savitt falsely represented that he appeared on December 3, 2013.
Savitt is not sanctioned for failing to attend the August 16 and December 3, 2013 court appearances as permitted by 22 N.Y.C.R.R. 130–1.2. This is because the January 28, 2014 scheduling order provided notice only that sanctions were being considered under 22 N .Y.C.R.R. 130–1.1.
Savitt also misrepresented that he had never before been in Housing Court: “I have, to my recollection, I have never been in Housing Court in New York before this case.” Tr. 21:16–17 (Jul. 23, 2013). Contrary to this assertion, Savitt was sued in Housing Court by his immediately proceeding landlord for nonpayment of rent in two different proceedings. When Savitt was challenged on his use of the “recollection” caveat, he changed the subject by demanding Judge Samuels' recusal. Id. at Tr. 22:3–17. When Savitt was again pressed on his answer during the sanctions hearing, he failed to correct the record. Id. at Tr. 21:16–24:7 (Feb. 18, 2014). The Court rejects Savitt's assertion that he did not recall multiple litigation with his landlord, particularly because his departure from an apartment was made in accordance with a warrant of eviction stayed until the day before the commencement of the subject lease in this proceeding. Beyond two years of litigation, Savitt also unsuccessfully sought to vacate a money judgment three years after it was entered pursuant to the stipulation of settlement Savitt executed in Spring Partners II. This Court finds that Savitt lied when he initially represented he had not previously been in Housing Court prior to this litigation and that he then lied again when he was challenged about his alleged lack of recollection of these two litigations.
Savitt also repeatedly misrepresented that Mishkin was an unknown “rogue” attorney with whom he had never interacted:
THE COURT: ... Now you said Ms. Mishkin was a stranger to you, you had never talked to her before, you never saw her before, you had nothing to do with her before, right?
MR. SAVITT: Correct.
Tr. 7:21–25 (Mar. 18, 2014); see also Tr. 9:7–12; Tr. 10:15–25 (Mar. 18, 2014); Tr. 15:16–20, Tr. 16:8–24, Tr. 19:4–7, Tr. 54:21–55:13, Tr. 58:7–16; Tr. 59:5–6, Tr. 81:12–20 (Feb. 14 2014); Tr. 12:3–13:3 (Jul. 23, 2013); Tr. 8:15–9:7 (Aug. 15, 2013). Mishkin, however, provided highly credible testimony regarding her interactions with Savitt. She testified that Savitt authorized her appearance on October 19, 2006 and that she spoke to him by telephone multiple times that day, including her reading the stipulation of settlement word-for-word to him. Tr. 86:23–87:14 (Feb. 18, 2014). Mishkin supported her testimony with documentary evidence, including her telephone records for the date in question. Exh. 8. This document revealed the existence of six telephone calls with Savitt's cell phone number that day, including two calls that lasted six and ten minutes. Id. The Court rejects, as lacking credibility, Savitt's explanation for these phone calls as being from someone he believed was a representative of Tribeca. Id. at Tr. 81:5–8.
Savitt has not asserted any privilege relating to any conversations he might have had with Mishkin. Any privilege that may exist was waived when he claimed that Mishkin settled the litigation without his knowledge or consent. 1050 Tenants Corp. v. Lapidus, 12 Misc.3d 1118, 1125–1126 (Civ.Ct., N.Y. County 2006) (Lebovits, J.) (attorney-client privilege waived by assertion that attorney was not authorized to sign agreement on a party's behalf).
Mishkin also revealed that she appeared for Savitt in Linden. A transcript from that action confirms Mishkin's appearance on Savitt's behalf at a preliminary conference conducted on October 12, 2006. When asked to address the transcript, Savitt asserted that his client must have hired Mishkin directly as a per diem attorney, despite being the sole attorney of record for Kama Linden from the beginning of the case to its conclusion. Tr. 121:9–122:6 (Mar. 18, 2014). After Savitt repeated his claim that Linden, herself, must have hired Mishkin to appear at the October 12, 2006 preliminary conference, the Court obtained the Linden compliance conference transcript of February 22, 2007, the subsequent court appearance in that action. Savitt's statements to Justice Gische, who presided over Linden, are probative of the mendacity of Savitt's present representations regarding Mishkin:
The Court is permitted to rely upon official court reporter transcripts in other cases. See Matter of Friedman, 196 A.D.2d 280, 294 (1st Dep't 1994) (“Respondent's testimony at the hearing that he was not present in the courtroom during the exhibit marshaling process was contradicted by the Mowen trial transcript which placed him in the courtroom throughout that period”).
THE COURT: The last time we were here we held a preliminary conference that was to allow the parties time to present information. What I need to know, the first order of business, is whether, in fact, the order was complied with.
Let's start with you, Mr. Savitt. Did you get what you requested?
MR. SAVITT: No, they haven't. Pursuant to a motion—to a notice I received from the court on August 16, 2006 I sent a demand for documents to both defendants individually. They never complied with that.
I guess at the last hearing an associate from my office was here, I was told to reserve those same demands for documents, which I did.
Tr. 2:15–3:4 (Feb. 22, 2007) (emphasis added), transcript of proceedings in Linden.
The above exchange is relevant for three reasons. First, Savitt falsely referred to Mishkin as his associate. Second, Savitt never questioned Mishkin's appearance at the October 12 preliminary conference as being that of a rogue attorney, but, rather, he affirmatively acknowledged her appearance as being authorized on his behalf. Third, Savitt referenced an oral directive that Justice Gische made to Mishkin that “[a]ny prior requests, he's going to have to resend.” Exh. 20 at Tr. 9:9–10 (Oct. 12, 2006), transcript of proceedings in Linden.
Another exchange during the February 22, 2007 compliance conference is relevant to Savitt's representations regarding Mishkin. Justice Gische raised the issue of non-compliance with the preliminary conference order, such as the January 10, 2007 deadline for conducting depositions. Savitt represented that the deadline was not complied with. Thus, the Court extended that deadline. Id. at Tr.11:5–12:1. Savitt's ability to address compliance with the preliminary conference order is information he necessarily would have obtained from Mishkin's report to him after her October 12 appearance. Based upon the multiple falsehoods Savitt has advanced regarding his interactions with Mishkin, this Court concludes that Savitt also lied regarding his authorization to Mishkin to appear and settle this litigation on October 19, 2006.
Savitt's willingness to mislead the court was also exhibited by the representation he made in his answer that he did not know Gary Luciani, whose last name was misspelled by one letter, and that Savitt had no idea why Luciani was named as a respondent in this action. Answer ¶ 6. Savitt furthered his earlier misleading, if not outright false, representation in his current motion by addressing Luciani using the original misspelled name together with quotations. In proceedings before Judge Samuels, Nahins noted that Savitt repeatedly misrepresented his lack of knowledge regarding Luciani:
The guarantee contains only Luciani's signature; the spelling of his name itself is not printed on the guarantee. Exh. 2 at 5.
When we were here one of the questions you asked Mr. Savitt was about Mr. Gary Luciano. And if you remember he said I don't know Gary Luciano. He said in his answer also defendant is unaware of anyone [by] the name of Gary Luciano, has no idea, why his name appears on this complaint. We all took that at face value. And then if you look at the order to show cause by Ms. Mishkin, and you [look] at [the] exhibit ... [i]t has a case in front of Judge Schaffer that was decided which is interesting. The complainants are Richard B. [sic] Savitt and Gary Luciani. Difference between I and O.
Tr. 18:9–22 (Jul. 23, 2013). Nahins then told Judge Samuels that he was having difficulty searching for a way to describe Savitt's misconduct: “I am not sure what [is] the exact word for” a person that looks at a judge and repeatedly lies. Id. at Tr. 19:4–8.
When addressing differing acts of affirmative misrepresentation and what is sometimes called falsehoods by omission, the United States Court of Appeals for the Federal Circuit stated:
Falsification involves an affirmative misrepresentation, and requires intent to deceive. Naekel v. Dep't of Transp., 782 F.2d 975, 977 (Fed.Cir.1986). Lack of candor, however, is a broader and more flexible concept whose contours and elements depend upon the particular context and conduct involved. It may involve a failure to disclose something that, in the circumstances, should have been disclosed in order to make the given statement accurate and complete. It would be comparable to the distinction in the Federal securities laws governing securities registration statements between “an untrue statement of a material fact” and the failure “to state a material fact ... necessary to make the statements therein not misleading.” 15 U.S.C. § 77k(a) (2000).
Ludlum v. Dep't of Justice, 278 F.3d 1280, 1284 (Fed.Cir.2002). Using this standard, the first part of Savitt's statement—that he doesn't know Luciani—lacks candor, as he knows this person. Reliance on the petitioner's misspelling of Luciani's name by one letter fails to justify Savitt's denial of knowledge. As an attorney, he should know that courts have consistently disregarded minor misspellings or misnomers. See, e.g., Daniels v. Loizzo, 174 F.R.D. 295 (S.D.NY 1997) (Lowe, J.) (addressing defendant's name being misspelled as “Fisher” instead of “Fischer ”); State Higher Educ. Services Corp. v. Sparozic, 35 AD3d 1069, 1070 (3d Dep't 2006) (citations omitted ) (addressing a similar error of “Sparozio ” instead of”Sparozic ”).
Savitt also engaged in an affirmative misrepresentation when he attested in his answer that he had no idea why Luciani is named in the complaint. This is false because Savitt would have known that Tribeca, in suing him for nonpayment of rent, might seek recovery from the individual who personally guaranteed Savitt's obligations under the lease. Exh. 2 at 5. Even in a literal sense, Savitt lied because he knows that the name of his guarantor and childhood friend was misspelled, which means that Savitt knew why the albeit misspelled name “Gary Luciano” appeared in the petition.
The Court is also concerned with Savitt's litigation conduct, both with the way he dealt with the Court and the way in which he has litigated his cases. Savitt repeatedly accused Judge Samuels of misconduct and judicial bias. During the sanctions hearing, the Court asked Savitt the following question: “Do you think it's appropriate to speak to a Judge and accuse her of making false statements?” Tr. at 25:11–13 (Feb. 18, 2014) Rather than addressing his disrespectful behavior, Savitt instead sought to rehash his negative view of Judge Samuels' rulings in Daniel Express and her refusal to recuse herself from his cases thereafter:
I had requested that Judge Samuels recuse herself repeatedly. I have asked it not only in this case but I asked it in another case and most recently a case I believe it's Davler Media versus Astro Gallery Gems. She laughs it off. She makes more false statements by telling me not only did I miss the phantom hearing on May 27th, which is in the transcript, which she then set down for hearing on June 14th, which I missed that hearing because I wasn't there on May 27th when she had a phantom hearing. But then she said in the most recent court case and he's missed many other hearings. She makes these blanket statements that are blatantly false. They're offensive and untrue. I asked her to recuse herself so that we could get by all this and this would not be an issue. She's refused. I have and I continue to have proof that she's made them and ruled on material representations in order to punish me.
Id. at Tr. 25:19:26–11.
Savitt's conduct falls short of acceptable professional behavior as articulated in the rules of court holding that an attorney “must avoid disorder or disruption in the courtroom, and he must maintain a respectful attitude toward the court. In all respects the attorney is bound, in court and out, by the provisions of the Rules of Professional Conduct (Part 1200 of this Title).” 22 N.Y.C.R.R. 604.1(d)(1). Indeed, Savitt's disrespectful behavior “evinces bad faith or an egregious disrespect for the Court or judicial process.” Ransmeier v. Mariani, 718 F.3d 64, 68 (2d Cir.2012). Such disrespect is demonstrated, as here, by Savitt “repeatedly and in bad faith accus[ing] the Court of bias, malice, and general impropriety.” Id., quoting, Gallop v. Cheney, 660 F.3d 580, 584 (2d Cir.2011) (per curiam), vacated in part on other grounds, 667 F.3d 226, 231 (2d Cir.2011). In reaching its conclusion that Savitt committed sanctionable misconduct, this Court considers the complete absence of any remorse by Savitt for his behavior.
During the February 18, 2014 sanctions hearing, Savitt raised his interaction with Judge Samuels in other cases, including Davler Media. Tr. 25:18–26:11 (Feb. 18, 2014) (“I have asked it not only in this case but I asked it in another case and most recently a case I believe it's Davler Media versus Astro Gallery of Gems”). Having disclosed this case, this Court secured a transcript in Davler Media. During the course of proceedings in Davler Media, Savitt accused Judge Samuels of judicial bias. Savitt also threatened to file a complaint against Judge Samuels with the Commission and asserted that he had not already filed such a complaint because she had recused herself from this action: I request that Your Honor recuse herself.
I have my colleague getting the names of the cases. There are two cases in which I was involved in, in which I had a copy of the transcript. One case is Savitt versus, I don't recall, it's a telephone company or a retail store, which Your Honor made some false statements in open court, and I had a copy of the transcript.
Your Honor made claims that she met ex parte with defense counsel and then made rulings against me in the amount of, I believe, $10,000 for missing a hearing that was never scheduled, never on the Court calendar, and I took great offense to that.
Certainly, I have yet to file a formal grievance against Your Honor. But, certainly, I thought this was over since you recused yourself on the last case we were on, which was a case against me personally where an attorney, a rogue attorney, showed up in court, answered a judgment on my behalf against me when she was never hired by me, never known by me, never knew who she was, never authorized her.
And despite all that, Your Honor went forward with the case on multiple occasions. And then, finally, at the end of all that, spent twenty, thirty hours in court on all those cases. And, finally, Your Honor recused herself from that case.
* * * *
I don't understand how Your Honor, based upon her prior ruling, can possibly be fair and reasonable in a case which I am involved, based upon her prior ruling, and knowing there is going to be a formal grievance filed.
Tr. 2:3–3:9 (Jan. 14, 2014) (emphasis added), transcript in Davler Media. Judge Samuels rebuked Savitt for his disrespectful behavior, corrected the record relating to the reasons for sanctioning Savitt in Daniel Express and its attendant circumstances, and noted that her earlier recusal in this action was “not because I harbor any grudge against you.” Id. at Tr. 4:6–7:21. Threatening a judge with a complaint to the Commission during the course of litigation proceedings is per se an ethics violation. Matter of Heller, 9 AD3d 221, 223 (1st Dep't 2004) ; Tsabbar v. 17 E. 89th St. Tenants, Inc., 2008 N.Y. Slip Op. 32914(U), 2008 WL 4761386 (Sup.Ct., N.Y. County Oct. 21, 2008) (Madden, J.).
While he was respectful during most of the February 18, 2014 hearing, Savitt's conduct during the March 18, 2014 court appearance was markedly different. Savitt frequently raised his voice, made multiple accusations of bias, and engaged in other disrespectful and disruptive conduct. This Court had to direct Savitt to stop yelling. Tr. 13:14 (Mar. 18, 2014). A court officer had to caution him to lower his voice to maintain proper decorum. Id. at Tr. 13:15–16. As a result, it appears given the double hyphens that litter the March 18 transcript, that the court reporter had difficulty transcribing many of Savitt's statements.
Savitt also engaged in additional misbehavior when, as noted above, he disclosed in an April 11, 2014 letter the existence of a confidential filing he apparently made with the Commission. This is similar to Savitt's misconduct in attempting to leverage improperly his ethics complaint to obtain relief in a civil action. Id. at Tr. 96:2–14 (Feb. 18, 2014). Had Savitt researched his ability to disclose information regarding confidential ethics investigations, he would have learned that such conduct is prohibited:
We conclude, however, that as a lawyer, respondent knew or should have known that disciplinary investigations are confidential. Consequently, we conclude that, by posting on his website information concerning a confidential investigation into the conduct of a rival law firm, respondent engaged in conduct that was prejudicial to the administration of justice and that adversely reflected on his fitness as a lawyer....
Matter of Moran, 42 AD3d 272, (4th Dep't 2007) ; Wiener v. Weintraub, 22 N.Y.2d 330 (1968) (noting that all papers relating to proceedings before the Departmental Disciplinary Committee are confidential). Savitt's attempted misuse of confidential ethics complaints to obtain an advantage in civil litigation is frivolous.
Savitt has also repeatedly failed to abide by court rules, including the ban on parties using affirmations. Savitt's misuse of affirmations cannot be considered unwitting in nature because he was previously rebuked for improperly submitting them:
Plaintiff Savitt attached his “affirmation” in support of the motion. However, as a “party” he is required to submit an “affidavit.” The use of the affirmation can only be by an attorney for the party. CPLR § 2106 states: The statement by an attorney admitted to practice in the courts of the state ... authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect of an affidavit.
Savitt cannot circumvent Section 2106 in his capacity as a principal of the Savitt Law Firm. Savitt submits his affirmation in an effort to demonstrate his burden. Because he is a party, regardless of the fact that he has “retained” his law firm to represent him in this action, the submission of his affirmation instead of an affidavit is improper (Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801;Pisacreta v. Minniti, 265 A.D.2d 540;Board of Managers of Ocean Terrace Towne House Condominium v. Lent, 148 A.D.2d 408, 409).
* * * *
Accordingly, the Court will not consider Savitt's affirmation in support of the motion for an order enforcing the Agreement (Pisacreta v. Joseph A. Minnitti, P.C., 265 A.D.2d 540 [attorney and his professional corporation should not have submitted an affirmation by the attorney instead of an affidavit in their effort to demonstrate a reasonable excuse for their delay in answering or appearing and a meritorious defense in a legal malpractice action against them, as the attorney was a party; thus, the affirmation should have been disregarded in resolving the client's motion for leave to enter a default judgment] ).
Exh. 18 at 1–2, Epinard, 2004 WL 6339870, at *1–*2;see also Exh. 10b, Daniels Express, at 3 (“In support of this application plaintiff provides affirmations, instead of the required affidavits”). Mishkin noted during the July 23, 2013 proceedings that Savitt has been misusing affirmations instead of affidavits “habitually, I would say for at least nine years since Judge Schaffer's decision was issued in [2004].” Tr. 36:12–14 (Jul. 23, 2013). This Court finds that Savitt frivolously misused affirmations after being specifically informed in prior actions that he is not permitted to use them when he is a party to litigation.
Additionally, Savitt failed to abide by basic procedures regarding the use of subpoenas. When this Court authorized Savitt to serve post-hearing subpoenas, he was specifically cautioned that because he is a party he could not sign them. Tr. 130:2–4 (Feb. 18, 2014) (“[Y]ou're not allowed to sign subpoenas yourself as a party”). This instruction follows earlier motion practice in this litigation involving Savitt's improperly signing a subpoena. Tr. 64:15–20 (March 18, 2014). Savitt initially refused to acknowledge that he signed the subpoenas. Id. at Tr. 66:2–4. Even when Savitt conceded the defective nature of the subpoenas, he refused to take responsibility for failing to abide by court rules and directives. Therefore, Savitt's conduct in serving defective subpoenas is frivolous.
The Court also takes into account the various decisions either sanctioning or otherwise criticizing Savitt. These decisions are relevant because Part 130 permits “a court to determine bad faith by the time-honored practice of drawing a conclusion from the pattern of conduct existing in the record.” Principe v. Assay Partners, 154 Misc.2d 702, 709 (Sup.Ct., N.Y. County 1992). For instance, Judge Karen Smith in Cooper also commented on Savitt's failure to appreciate the frivolity of his litigation conduct. There, Judge Smith described Savitt's misconduct as follows:
So it is clear, Savitt is sanctioned only for his behavior in this action. Savitt's conduct in other actions, however, allows the Court to conclude whether the misbehavior perpetrated in this action “was aberrant or part of a persuasive pattern.” Shields v. Carbone, 99 AD3d 1100, 1103 (1st Dep't 2012).
Thus, having made a frivolous motion, having caused defendant to oppose said motion and cross-move for sanctions, and having opposed the cross-motion with wholly meritless and unprofessional arguments, including ad hominem attacks against opposing counsel's character, such statements having caused the necessity of defendant's counsel to submit a reply to the cross-motion, plaintiff's counsel belatedly says “Oops” and withdraws his motion.
Id. at 405. When asked to explain his behavior in Cooper, Savitt came close to accepting responsibility, but, in the end, still blamed his client for his having litigated a frivolous motion for a default judgment. Tr. 59:21–60:4 (Feb. 18, 2014). Given Savitt's inability to accept responsibility for any of his misdeed, it is unsurprising that, 10 years after Judge Smith was forced to sanction Savitt for engaging in misconduct, which included “ad hominem attacks,” Savitt continues to engage in the same type of misbehavior.
In another case, the Hon. Richard B. Lowe III found frivolous motion practice in which Savitt was the attorney:
The motion papers are totally devoid of any evidence that Olshan ever acted in a professional capacity for Weisberger, or had access to any confidential information or privileged information regarding Weisberger's business dealings.... Moreover, Weisberger's disqualification application is made frivolously, as a litigation tactic, when there is no real concern that a confidence has been abused.
Weisberger v. Green, Index No. 602331/02 (Sup.Ct., N.Y. County Nov. 8, 2002) (emphasis added). After Justice Lowe denied Savitt's frivolous disqualification application, a new action was commenced naming the same law firm as a defendant. This new action was eventually dismissed. See Dominick v. Green, Index No. 601803/03 (Sup.Ct., N.Y. County Sep. 14. 2005) (Ramos, J.).
More recently, in October 2013, the Hon. Doris Ling–Cohan felt obliged to comment on Savitt's willful failure to abide by basic court rules and orders and questioned the veracity of his submissions. Justice Ling–Cohan issued an order directing that “[o]n or before May 13, 2013, plaintiff and defendant shall serve and file a memorandum of law regarding how the Dead Man Statute CPLR 4519 applies in this action.” Savitt v. Estate of Passantino, 2013 WL 5787995, at *1 (Sup.Ct., N.Y. County Apr. 19, 2013) (Ling–Cohan, J.). Rather than comply with this order, Savitt submitted sur-reply documents:
In support of his arguments, without prior permission and contrary to the CPLR, plaintiff Savitt attaches the affidavits of Geoff Ringelstein and Mark Muscarella FN3 to his supplemental memorandum of law FN4, purporting to corroborate the allegations in the complaint, and, thus, claims that such allegations can be proved at trial, without plaintiff Savitt's own testimony, such that the Dead Man's Statute is inapplicable. Such affidavits were not considered, as plaintiff Savitt did not seek permission for submission of such affidavits (constituting a sur-reply), and as the court only ordered memos of law on a specific issue.
FN3. Even if considered, both affidavits are inherently incredible as they refer to an incident with Decedent Santino on December 12, 2012, when it is undisputed that Decedent Santino committed suicide on January 25, 2012, before such date.
FN4. Instead of submitting a memo of law as directed in the April 19, 2013 order, plaintiff Savitt inexplicably submitted an affirmation and additional affidavits, without permission.
Passantino, 41 Misc.3d 1219(A), at *2. When Savitt was questioned about his submission of the additional unauthorized material, he disagreed that he had not complied with Justice Ling–Cohan's April 19, 2013 order. Tr. 63:21–24 (Feb. 18, 2014).
In January 2014, a motion to dismiss a complaint was granted by Justice Kornreich on the ground that Savitt's factual contentions, which were putatively based on his own personal knowledge as a buyer, were “inherently incredible.” Zorse, 2014 WL 359336 at *3. Savitt attempted to argue in Zorse that a claim he assigned to another person should be tolled because Savitt was unaware of a problem with a down payment for eight years, i.e. the down payment was allegedly paid to the wrong entity. Id. Justice Kornreich rejected Savitt's professed ignorance of facts underpinning the claim. Id. The court's electronic records indicate that Savitt's motion to renew and reargue was denied on April 28, 2014.
In February 2014, a motion to amend a complaint filed by Savitt, as counsel for a plaintiff in another case, was “denied on the grounds that it [was] clearly devoid of merit.” Lerch v. Ark Restoration & Design Ltd., 2014 N.Y. Slip Op. 30460(U), 2014 WL 726733 (Sup.Ct., N.Y. County Feb. 25, 2014) (Edmead, J.). In criticizing Savitt, the Hon. Carol R. Edmead stated:
The motion is also fatally defective in form. Although the notice of motion recites that the motion is based on the affirmation of plaintiffs' counsel Savitt, the affirmation has a signature line and purported signature for Savitt but is affirmed at the beginning by “Brian Cohen ... the Plaintiff in this action,” who bears no relation to the case. FN4 Thus, the motion lacks proper support under the Rules.
* * * *
FN4. Defendants' counsel advised Savitt of this defect (as well as the issue of the GBL 349 claim being duplicative of the previously dismissed fraud claims) in an effort to resolve/obtain the withdrawal or adjournment of the motion; however, Savitt refused to withdraw or adjourn the motion, thus necessitating defendants' opposition.
Lerch, 2014 WL 726733, at *2.
In April 2014, Judge Samuels issued a post-trial decision in Davler Media. As in Lerch, Savitt apparently submitted an affidavit that states in the body of the document that it was being executed by a person other than the individual that actually signed the affidavit. Davler Media, supra, (Civ.Ct., N.Y. County Apr. 1, 2014) (Samuels, J.). More problematic for the resolution of the litigation, however, was that the factual assertions contained in this affidavit, submitted in support of an earlier motion to vacate, contradicted the trial testimony of defendant's witnesses, including the person who signed the affidavit. Id. Given the importance that credibility played in reaching her decision, Judge Samuels concluded that “[t]he falsehoods and half-truths asserted in the motion to vacate the judgment achieved the victory of vacatur but those statements substantially tainted the credibility of the defendant's witnesses at trial.” Id. The discussion during the trial involved the grossly misleading nature of the affidavit. Tr. 122:23–150:15 (Jan. 14, 2014), transcript of proceedings in Davler Media. Plaintiff's counsel, Carol Morokoff, noted that the factual misstatements were repeatedly made on behalf of the defendant in that action, beginning with the answer with counterclaims that Savitt signed and submitted on behalf of his clients. Id. at Tr. 128:2–129:19.
Savitt, whether as an attorney or self-represented litigant, has demonstrated little inclination to abide by basic court rules and procedures. His misconduct has delayed litigation, inflicted unnecessary expense on adversaries, and wasted judicial resources that could have been better spent resolving meritorious matters. This Court concludes that Savitt's misconduct in this proceeding was not aberrant conduct, but rather part of a pervasive pattern of wilful misconduct.
Accordingly, the Court exercises its discretion to find Savitt's frivolous conduct in this case to be sanctionable. Having done so, the Court must determine the amount of the sanction, which shall not “exceed $10,000 for any single occurrence of frivolous conduct.” 22 N.Y.C.R.R. 130–1.2. As noted by the Hon. Gerald Lebovits in imposing a $10,000 sanction for frivolous conduct by an attorney who was also the respondent in a settled landlord-tenant matter:
As an attorney, Lapidus knows better; he must be held to ethical standards. He lied repeatedly and without shame at his trial and again at the sanctions hearing. What began as one simple prevarication about not seeing a stipulation mushroomed into a web of deceit. He lied about things he thought would affect the outcome of his trial. In lying, he falsely blamed one attorney of committing misconduct, and he further falsely accused that attorney and another attorney of perjury for their testimony at this hearing.
1050 Tenants Corp. v. Lapidus, 13 Misc.3d 1220(A) (Civ.Ct., N.Y. County 2006) (Lebovits, J.); see also Weinstock v. Weinstock, 253 A.D.2d 873, 874 (2d Dep't 1998) (“We therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130–1.1 ), calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the court with real grievances.”).
Little distinguishes Savitt's misconduct from that of Lapidus'. Savitt lied on multiple occasions to secure relief from an agreed-upon stipulation of settlement. In attempting to secure the financial benefit of his misconduct, he falsely accused others of misconduct, including an attorney who had to obtain documents years after-the-fact to clear her name. Moreover, Savitt's numerous misrepresentations required the expenditure of significant time by court personnel together with various attendant costs, including the expense associated with obtaining multiple transcripts of court proceedings. Accordingly, taking all the above into consideration, the Court imposes a $10,000 sanction against Savitt. Because Savitt is an attorney, the payment of the sanctions award shall be made to the “Lawyers' Fund for Client Protection established pursuant to section 97–t of the State Finance Law.” 22 N.Y.C.R.R. 130–1.3.
Conclusion
Based upon the foregoing, the Court hereby denies Savitt's motion to vacate the default that resulted in Judge Schecter's August 16, 2013 order and grants Tribeca's cross-motion for an award of attorneys' fees in the amount of $7,410.88. Savitt is also found to have committed multiple acts of frivolous conduct in violation of 22 N.Y.C.R.R. 130–1.3 and is sanctioned $10,000, which he is directed to pay, within 30 days of service of this order with notice of entry, to the Lawyers' Fund for Client Protection of the State of New York, 119 Washington Avenue, Albany, New York 12210. The Clerk is directed to enter judgment in accordance with this decision and order, and to mail a copy of the order to the Lawyers' Fund for Client Protection. This constitutes the Court's decision and order.