Opinion
2011-01425 Index No. 13933/04 M156960
05-30-2013
Gihon, LLC, respondent, v. 501 Second Street, LLC, et al., appellants.
, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
L. PRISCILLA HALL, JJ.
DECISION & ORDER ON MOTION
Appeals by 501 Second Street, LLC, Dorothy Nash, Rachel Nash, and Esther Nash, individually and doing business as 501 Second Street Holding Corp. from a judgment of the Supreme Court, Kings County, entered January 3, 2011, which was determined by decision and order of this Court dated February 27, 2013. By order to show cause contained in the decision and order dated February 27, 2013, counsel for the respective parties were directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against the defendants 501 Second Street, LLC, Dorothy Nash, Rachel Nash, and Esther Nash, individually and doing business as 501 Second Street Holding Corp., and/or their counsel pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate, based on arguments raised on this appeal and on a related appeal from an order of the same court dated July 30, 2010, as amended November 4, 2010, which was determined by decision and order of this Court also dated February 27, 2013 (see Gihon, LLC v 501 Second Street, LLC, ____ AD3d____ [Appellate Division Docket No. 2010-08362]). The related appeal from the order dated July 30, 2010, as amended November 4, 2010, was dismissed on the ground that the right of direct appeal from the order terminated with the entry of the final judgment in the action (see Matter of Aho, 39 NY2d 241, 248). We reviewed the issues raised on the appeal from the order dated July 30, 2010, as amended November 4, 2010, on the appeal from the judgment (see CPLR 5501[a][1]).
Now, upon the Court's own motion and upon the papers filed in response to the order to show cause contained in the decision and order dated February 27, 2013, it is
ORDERED that within 20 days after service of a copy of this decision and order on motion upon her, Rachel Nash, counsel for the appellants, is directed to pay a sanction in the sum of $750 to the Lawyers' Fund for Client Protection of the State of New York (see 22 NYCRR 130-1.1[b]; 130-1.3); and it is further,
ORDERED that the Clerk of the Supreme Court, Kings County, shall enter judgment accordingly (see 22 NYCRR 130-1.2); and it is further,
ORDERED that the Clerk of this Court, or her designee, shall serve a copy of this decision and order on motion upon counsel for the parties by regular mail; and it is further,
ORDERED that within 10 days after payment of the sanction, Rachel Nash shall file proof of payment with this Court.
The contention by Rachel Nash, the appellants' counsel, that the Supreme Court unlawfully awarded statutory interest on the judgment is frivolous, as CPLR 5001(a) provides, in relevant part, that interest "shall be recovered upon a sum awarded because of a breach of a performance of a contract" (emphasis supplied) and CPLR 5004 provides that "[i]nterest shall be at the rate of nine per centum per annum, except where otherwise provided by statute" (emphasis supplied).
In the brief submitted in connection with the appeal from the order dated July 30, 2010, as amended November 4, 2010, the appellants' counsel again attempted to advance arguments that we declined to address in a prior appeal, concerning an order dated March 13, 2003, which the appellants appealed from but which appeal was dismissed by this Court on November 25, 2003, for failure to perfect. In addition, this Court has rejected several attempts by the appellants' counsel to revisit counsel's allegations that the plaintiff "breached the commercial lease," and the appellants' counsel's statement that "[o]n October 10, 2003, 501 Second Street, LLC, lawfully changed the name of its ownership . . . to 501 Second Street Holding Corp." is contrary to our decision on a prior appeal (see Gihon, LLC v 501 Second St., LLC, 77 AD3d 708). Furthermore, without any support, and apparently disregarding the fact that the Supreme Court only awarded some, but not all, of the relief sought by the plaintiff, Gihon, LLC, the appellants' counsel nonetheless alleged that the "order [dated] July 30, 2010 is not founded in law and facts[;] instead it is an act of retaliation against Defendants and their counsel for requesting [the Supreme Court Justice] to recuse himself for his bias [in favor of the plaintiff] and his prejudice against Defendants."
We conclude that the appellants' counsel raised arguments that were "completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" (22 NYCRR 130-1.1[c][1]), and made "material factual statements that [were] false" (22 NYCRR 130-1.1[c][3]; see Korbel v Zoning Bd. of Appeals of Town of Horicon, 28 AD3d 888, 889-890). Accordingly, we determine that a sanction in the amount set forth above is warranted.
DILLON, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court