Santaliz v. OR FM Assocs.
| Decision Date | 02 May 2022 |
| Docket Number | Index No. 259/2021 |
| Parties | Nolan SANTALIZ, Petitioner, v. OR FM ASSOCIATES and HPD, Respondents. |
| Court | New York Civil Court |
For Respondent OR FM Associates: Felipe Orner
For Respondent HPD: Paul Gdanski
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Pages numbered
Notice of Cross-Motion1 (motion sequence No.6) and Supplemental Affidavit Annexed 1, 2
Notice of Cross-Motion (motion sequence #7) and Supplemental Affirmation Annexed 3, 4
Affirmation In Reply 6
Upon the foregoing papers, the Decision and Order on this motion are as follows:
Nolan Santaliz, the petitioner in this proceeding ("Petitioner"), commenced this proceeding against OR FM Associates and Tzifil Realty Corp., the respondents in this proceeding ("Respondent"), and the Department of Housing Preservation and Development of the City of New York ("HPD"), seeking a judgment on a cause of action sounding in harassment and an order to correct violations of the New York City Housing Maintenance Code at 922 East 15th Street, Apt. 2C, Brooklyn, New York ("the subject premises"). The Court has already rendered a judgment on Petitioner's causes of action after trial. Before the trial, HPD had moved to quash a subpoena that Respondent had served upon HPD ("Respondent's Subpoena"). Respondent and HPD now move and cross-move for sanctions against one another.
Given the months-long submission schedule on this motion practice that enabled the parties to fully develop and respond to various arguments, the extensive record developed on this motion practice, and the absence of material fact disputes, the Court does not require an evidentiary hearing to render a determination on the two sanctions motions. Minister, Elders & Deacons of Reformed Protestant Dutch Church v. 198 Broadway, Inc. , 76 N.Y.2d 411, 413 n.1, 559 N.Y.S.2d 866, 559 N.E.2d 429 (1990), Caro v. Marsh USA, Inc. , 101 A.D.3d 1068, 1069, 956 N.Y.S.2d 575 (2nd Dept. 2012), leave to appeal dismissed , 21 N.Y.3d 1068, 974 N.Y.S.2d 314, 997 N.E.2d 139 (2013), Jalor Color Graphics v. Universal Adver. Sys. , 193 Misc 2d 76, 77, 749 N.Y.S.2d 816 (App. Term 1st Dept. 2002), aff'd , 2 AD2d 65 (1st Dept. 2003), First Deposit Nat'l Bank v. Van Allen , 277 A.D.2d 858, 861, 716 N.Y.S.2d 815 (3rd Dept. 2000), Gordon v. Marrone , 202 A.D.2d 104, 111, 616 N.Y.S.2d 98 (2nd Dept. 1994), In re Estate of Marsh , 207 A.D.2d 749, 616 N.Y.S.2d 962 (1st Dept. 1994).
Respondent's sanctions motion against HPD
Respondent's cross-motion for sanctions was in direct response to HPD's motion to quash Respondent's Subpoena ("HPD's Quash Motion"). The Court has already ruled on HPD's Quash Motion by an order dated December 23, 2021. The Court denied HPD's Quash Motion with regard to the production of tenant complaints, finding that this demand was not overbroad or burdensome and did not seek production of privileged or irrelevant material. The Court also denied HPD's Quash Motion with regard to a subpoena ad testificandum, based on legal authority that the right to serve a subpoena ad testificandum is absolute, distinguishing authority that HPD had cited to the contrary. The Court granted HPD's Quash Motion to the extent that Respondent's Subpoena constituted an overbroad fishing expedition and granted HPD's Quash Motion to the extent that Respondent's Subpoena sought production of training materials, based in particular on apposite authority.
Respondent argues that HPD predicated HPD's Quash Motion on authority that was inapposite, outdated, and from a different appellate department than the Second Department. Respondent's argument relies heavily on the proposition that a subpoena can be quashed if it seeks production of materials that are "utterly irrelevant" and that HPD's citation of other authority for other propositions does not accurately reflect the state of the law. However, subpoenas can be quashed for other reasons, such as when trials subpoenas are used to ascertain the existence of evidence, In re Terry D. , 81 N.Y.2d 1042, 1044, 601 N.Y.S.2d 452, 619 N.E.2d 389 (1993), Capacity Grp. of NY, LLC v. Duni , 186 A.D.3d 1482, 1484 (2nd Dept. 2020) or overbreadth, Bour v. 259 Bleecker LLC , 104 A.D.3d 454, 455, 961 N.Y.S.2d 98 (1st Dept. 2013). The Court in fact granted HPD's motion in part on this ground.
A motion is "frivolous" for purposes of sanctions if, inter alia , it is "completely without merit in law or fact" and "cannot be supported by a[ny] reasonable argument for an extension, modification or reversal of existing law." 22 N.Y.C.R.R. § 130-1.1(c)(1), Minister, Elders & Deacons of Reformed Protestant Dutch Church , supra , 76 N.Y.2d at 414, 559 N.Y.S.2d 866, 559 N.E.2d 429. While HPD's argument did not prevail with regard to some aspects of Respondent's Subpoena, HPD made reasonable arguments with regard to overbreadth, relevance, a burden on HPD, and the diversion of resources from HPD's core mission. HPD acknowledged the broad leeway applying to subpoenas ad testificandum but in essence argued for an extension of the law given HPD's specialized mission. The Court shall deem "clearly meritless" arguments as frivolous, Bavers v. Shepherd , 189 A.D.3d 606, 610 (1st Dept. 2020), but that means that sanctions are inappropriate where a party asserts colorable, albeit unpersuasive, arguments in good faith and without an intent to harass or injure, Gordon Group Invs., LLC v. Kugler , 127 A.D.3d 592, 594-595 (1st Dept 2015), even "somewhat colorable" argument when not made in bad faith or for improper purposes, Matter of L & M Bus Corp. v. N.Y.C. Dep't of Educ. , 83 A.D.3d 432, 433, 920 N.Y.S.2d 331 (1st Dept. 2011), and even if, arguendo , an argument lacks support in authority. See , e.g. , Ramirez v. 3690 Jad Food Corp. , 2016 N.Y. Slip Op. 33105(U)( S. Ct. Bronx Co.), Judicial Settlement of Account of Paul E. Brody , 59 Misc 3d 1215(A)( Sur. Ct. Queens Co. 2015). HPD's arguments easily cleared this standard. Accordingly, the Court denies Respondent's motion for sanctions against HPD.
HPD's sanctions motion against Respondent
HPD's motion for sanctions against Respondent more accurately is a motion for sanctions against Felipe Orner, who is both the attorney of record for Respondent and Respondent's registered managing agent ("Respondent's counsel"). The context of the underlying proceedings helps to clarify the motion for sanctions against Respondent's counsel.
Petitioner commenced this proceeding on or about March 31, 2021.3 The petition was noticed to be heard on May 6, 2021.4 After a referral from the trial expediter, the Court held a pretrial conference of this matter on October 21, 2021. A matter referred to a trial part of Housing Court is presumed to be trial-ready. See DRP-150A.5 While the Court cannot commence with a trial on the day of the pretrial conference, 11-15 Montrose Ave. Tenant Ass'n v. 11-15 Montrose Ave. Housing Dev. Fund Corp. , 72 Misc 3d 1210(A)( Civ. Ct. Kings Co. 2021), in theory there is no reason that the trial part cannot calendar a trial relatively expeditiously after the pretrial conference. Moreover, Court rules mandate that trials in matters such as this one should go to trial within fifteen days of joinder of issue. 22 N.Y.C.R.R. § 208.43(g). The practical reality of the trial part's busy calendar often precludes a trial on that time scale, however, and as it happened the Court in this matter did not have an available date until four weeks after the pretrial conference. Accordingly, on October 21, 2021, the Court calendared the matter for trial to Friday, November 19, 2021 and then, in deference to Respondent's counsel's request for an accommodation of his Sabbath observance, calendared the matter for trial on Monday, November 22, 2021.6
Respondent's counsel objected to the Court's calendaring of the trial on a time frame of four weeks after the Court held a pretrial conference of this matter, asserting that he needed more time than that to review subpoenaed materials from HPD prior to the trial. As this proceeding is a special proceeding, however, Respondent was not entitled to discovery. CPLR § 408. While Respondent could have (and did) serve a subpoena on HPD, that subpoena would not have been a discovery subpoena, but a trial subpoena, which Respondent was only entitled to review on the trial date, not before. People ex rel. Hickox v. Hickox , 64 A.D.2d 412, 413-14, 410 N.Y.S.2d 81 (1st Dept. 1978). Accordingly, Respondent's counsel's insistence that four weeks was too soon to calendar a trial had no support or merit. Be that as it may, Respondent's counsel's reaction on the record on October 21, 2021 was to act disruptive, at one point shouting "this is ridiculous!", to the point that the Court muted him in the virtual Court appearance.7
Even though Respondent's counsel had four weeks to serve Respondent's subpoena on HPD, as he had discussed on October 21, 2021, and even though most of the materials Respondent's counsel sought production of existed before October 21, 2021,8 Respondent's counsel waited until November 16, 2021, six days before the trial, to submit Respondent's subpoena to be so-ordered. And even then, Respondent's counsel only uploaded the subpoena to the New York State Court Electronic Filing ("NYSCEF") system and did not notify the Court by email, even though the Court had previously communicated to Respondent's counsel that the Court does not receive timely NYSCEF notifications.9 The Court happened by chance to see the subpoena on November 17, 2021 and promptly so-ordered it and notified all the parties by email. HPD's Quash Motion ensued one day later, on November 18, 2021. At around the same time, Respondent's counsel moved for a stay of the trial. The Court denied Respondent's motion for a stay by an order dated ...
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