317 W. 87 Associates v. Dannenberg
| Decision Date | 08 March 1990 |
| Citation | 159 A.D.2d 245,552 N.Y.S.2d 236 |
| Parties | ASSOCIATES et al., Plaintiffs-Respondents, v. Jeffrey C. DANNENBERG, et al., Defendants. Jeffrey C. DANNENBERG, Third-Party Plaintiff, v. KUROFF ASSOCIATES, Third-Party Defendant-Appellant. Arnold Pross, Non-Party Witness-Appellant. |
| Court | New York Supreme Court — Appellate Division |
E.N. Kaplan, for plaintiffs-respondents.
A.B. Schultz, Lake Success, for third-party defendant-appellant.
A.B. Schultz, Lake Success, for non-party witness-appellant.
Before SULLIVAN, J.P., and ROSS, ROSENBERGER and KASSAL, JJ.
Order, Supreme Court, New York County (David B. Saxe, J.), entered May 5, 1989, which granted plaintiffs' motion to hold third-party defendant, Kuroff Associates, and non-party witness, Arnold Pross, in civil contempt, to strike the third-party answer pursuant to CPLR § 3126, and to deny Kuroff's cross-motion to dismiss the complaint for lack of standing, unanimously affirmed, with costs.
Plaintiff Adam Katz and non-party Pross have been engaged in continuing litigation over control of plaintiff 317 W. 87 Associates, a limited partnership. One of the assets of that partnership is an apartment occupied by defendants Dannenberg. Jeffrey Dannenberg continued to pay rent to third-party defendant, Kuroff Associates, an entity controlled by Pross, even after a preliminary injunction in 1985 awarded at least temporary control of the landlord partnership to Katz. The justification offered for this diversion of rent assets was based upon a sublet agreement approved by Pross back in 1983, when he concededly was in control of the partnership. But this agreement, offered to the court under an affidavit by Dannenberg, and the validity of which was testified to in depositions by Dannenberg and Pross, was later exposed as a fraud--a document drawn and executed in 1987, and backdated to 1983. Dannenberg and Pross subsequently admitted the ruse.
Contributing to "undisputed untruthfulness" on the record justifies imposition of sanctions under CPLR § 3126. Smith v. Malarczyk, 118 A.D.2d 934, 935, 499 N.Y.S.2d 501. Such fraudulent and perjurious conduct during the course of judicial proceedings may also warrant punishment by contempt (Judiciary Law § 753[A][2]; Matter of Goslin, 95 App.Div. 407, 88 N.Y.S. 670, aff'd 180 N.Y. 505, 72 N.E. 1142), even against a non-party witness (Judiciary Law § 753[A][5].
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