Opinion
04-30-2024
George W. GOWEN etc., Plaintiff–Respondent, v. KELLY NAHMAD GALLERY, INC., et al., Defendants–Appellants.
Aaron Richard Golub, Esquire, P.C., New York (Nehemiah S. Glanc of counsel), for appellants. Landrigan & Aurnou, LLP, White Plains (Phillip C. Landrigan of counsel), for respondent.
Aaron Richard Golub, Esquire, P.C., New York (Nehemiah S. Glanc of counsel), for appellants.
Landrigan & Aurnou, LLP, White Plains (Phillip C. Landrigan of counsel), for respondent.
Singh, J.P., Gesmer, Kennedy, Scarpulla, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about June 16, 2020, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for an award of sanctions against plaintiff’s counsel, Landrigan & Aurnou, LLP (LAL) and nonparty Philippe Maestracci, unanimously affirmed, with costs.
The court’s denial of defendants’ sanctions motion was not a "clear abuse of discretion" (Grozea v. Lagoutova, 67 A.D.3d 611, 611, 888 N.Y.S.2d 507 [1st Dept. 2009]). LAL attested that its representations to the discovery Referee, Supreme Court, and this Court that Maestracci, nonparty grandson of Oscar Stettiner, was too ill to travel from France to New York for a deposition were made without knowledge of Maestracci’s personal travel to Vietnam, or the apparent improvement in Maestracci’s health. Moreover, in affirming the Referee’s order directing the deposition to take place in France, this Court did not emphasize Maestracci’s health status, but rather the "limited nature of his knowledge, that he had not been born when the painting at issue was confiscated and that he was a toddler at the time of Stettiner’s death" (Gowen v. Helly Nahmad Gallery, Inc., 169 A.D.3d 580, 581, 95 N.Y.S.3d 62 [1st Dept. 2019]). Although LAL should have conferred with Maestracci for updated health information before making representations to the court, the statements were not "so egregious as to constitute frivolous conduct within the meaning of 22 NYCRR 130–1.1" (Nugent v. City of New York, 189 A.D.3d 631, 632, 134 N.Y.S.3d 705 [1st Dept. 2020] [internal quotation marks omitted]; see also Fishoff Family Found, v. Frydman, 148 A.D.3d 601, 601, 50 N.Y.S.3d 346 [1st Dept. 2017]).
We have considered defendants’ remaining contentions and find them unavailing.
Motion to strike plaintiff’s brief; to declare that Maestracci is a party and/or a co-plaintiff and is in default on this appeal; to bar Maestracci from submitting a respondent’s brief; to deem Maestracci to have defaulted on defendants’ sanctions motion; and to further sanction plaintiff and his counsel, denied.
Cross-motion to supplement the record and for sanctions, denied.