Makan Land Development-Three, LLC v. Prokopov

• Decision Date: 10 July 2006
• Docket Number: Index No. 556/06
• Citation: 2006 NY Slip Op 30794 (U)
• Parties: MAKAN LAND DEVELOPMENT-THREE, LLC, Plaintiff, v. GEORGINE O. PROKOPOV, as Trustee of PROKOPOV FAMILY TRUST, Defendant.
• Court: New York Supreme Court

2006 NY Slip Op 30794(U)

MAKAN LAND DEVELOPMENT-THREE, LLC, Plaintiff, v. GEORGINE O. PROKOPOV, as Trustee of PROKOPOV FAMILY TRUST, Defendant.

Index No. 556/06

SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY

July 10, 2006

Present: HON. LEWIS J. LUBELL, J.S.C.

To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

Motion Date: June 23, 2006

The following papers numbered 1 to 7 were read on the submissions of the parties with respect to the issue of costs and attorneys' fees due and owing defendant after the waiver of a hearing by the parties:

Affirmation of Legal Services, Cost and Disbursements of Burt J. Blustein, Esq.-Exhibits ... 1-2

Affirmation Relative to Request for Costs of Joseph Haspel, Esq.-Exhibit ............... 3-4

Affirmation of Kushpal Virdi, Esq. ................................................. 5

Reply Affirmation of Burt J. Blustein, Esq.-Exhibit ................................. 6-7

Upon the foregoing papers and after a waiver of a formal hearing by the parties it is ORDERED that the matter of attorneys' fees and costs relative to the above entitled matter is disposed of as follows:

Defendant previously moved to dismiss plaintiff's complaint pursuant to CPLR 3211(a)(1) claiming that documentary evidence demonstrated that plaintiff's complaint was meritless, and alternatively moved for summary judgment. Plaintiff cross-moved to amend its complaint and opposed defendant's motion for summary judgment.

In an order dated April 19, 2006, this Court made a determination that from the submissions on the aforesaid motions, plaintiff's undertaking of the filing of a lis pendens without first ascertaining whether that remedy was appropriate was improper. Furthermore, after being informed of the impropriety of the remedy, plaintiff did nothing to cancel the lis pendens. In his unsigned opposition affirmation on the original motions, plaintiff's counsel admitted that based upon the complaint which was filed, the lis pendens was improper. Moreover, plaintiff's counsel opposed the motion to dismiss and a motion for summary judgment with an unsigned affirmation of an attorney lacking personal knowledge of the facts and cross-moves to amend plaintiff's complaint. The Court previously determined in its decision of April 19, 2006 that plaintiff's conduct in this matter demonstrated a repeated disregard for proper procedure and the law, and as such, made a finding that plaintiff's conduct was frivolous, setting the matter down for a formal hearing on the issue of costs and attorneys fees for May 9, 2006. At the May 9^th hearing, plaintiff's counsel requested time to submit opposition to the defendant's affirmation of attorneys' fees which application was granted. Counsel for all sides agreed to waive the formal hearing of the matter and agreed to submit all matters on this issue on papers to this Court. Final submission was scheduled for June 23, 2006.

At the May 9^th hearing date, plaintiff's counsel, Joseph Haspel, Esq., admitted on the record, that defendant's motion was made prior to his retention, and in fact, the complaint was drawn by Mr. Virdi. Mr. Haspel stated that after reading defendant's motion, he essentially agreed with it. He further stated: "I called Mr. Blustein and I said there is a problem here. I spokewith my client and I realized that what we have here is really the - the correct church but the wrong pew. Meaning what was set for in the complaint was for lack of better words garbage. At that point in time I indicated to Mr. Blustein that I agree that based upon the complaint that's filed, there should be no lis pendens."

As expressed in Park Health Center v Country Wide Ins. Co., 2 Misc3d 737, 740 (N.Y.City Civ.Ct.,2003):

"In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis for the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." ( Id.) [22 NYCRR 130-1.1[c]]

While the factors listed above are precatory in determining sanctionable conduct, "what remedy [to impose] is dictated by considerations of fairness and equity." (Levy v. Carol Management Corp., 260 A.D.2d 27, 34, 698 N.Y.S.2d 226 [1st Dept. 1999]). Moreover, "[s]anctions are retributive in that they punish past conduct. They are also 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. citation omitted"( Levy, 260 A.D.2d at 34, 698 N.Y.S.2d 226). The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party's conduct and prejudice to the adversary. ( See Vicom v. Silverwood, 188 A.D.2d 1057, 591 N.Y.S.2d 919 [4th Dept. 1992]).

By Mr. Haspel's own admission the originally filed complaint and lis pendens were "garbage". Mr. Haspel did nothing to remedy the situation, but instead proceeded with the litigation, filing wholly inadequate papers in an effort to revive what was an action that was "dead on arrival."

In determining whether the conduct

...