Opinion
Index No. 525341/2019
03-06-2023
Faigy Gross, Plaintiff, v. Nathan Brach, Defendant.
Law Offices of Jonathan David Bachrach, New York City (Jonathan David Bachrach of counsel), for plaintiff. Andrew Citron, New York City, for defendant.
Unpublished Opinion
Law Offices of Jonathan David Bachrach, New York City (Jonathan David Bachrach of counsel), for plaintiff.
Andrew Citron, New York City, for defendant.
AARON D. MASLOW JUSTICE OF THE SUPREME COURT
The following numbered papers were read on this motion:
Calendar No. 33 (Motion Sequence 5 - Plaintiff's Motion to Dismiss Defenses and Turn Over Escrow Funds) Notice of Motion (NYSCEF Doc No. 99)
Affirmation of Good Faith (NYSCEF Doc No. 100)
Affirmation in Support of Motion (NYSCEF Doc No. 101)
Exhibit 1 - Defendant's Notice of Motion in Motion Sequence 2 (NYSCEF Doc No. 102)
Exhibit 2 - Hon. Justice Wan's Decision on Motion Sequences 2, 3, 4 (NYSCEF Doc No. 103)
Exhibit 3 - Amended Verified Complaint (NYSCEF Doc No. 104)
Exhibit 4 - Defendant's Answer (NYSCEF Doc No. 105)
Affirmation of Good Faith (NYSCEF Doc No. 106)
Affirmation of Andrew Citron, Esq., in Support of Cross-Motion and in Opposition to Motion (NYSCEF Doc No. 119)
Affirmation of Nathan Brach in Support of Cross-Motion and in Opposition to Motion (NYSCEF Doc No. 120)
Affirmation of Jonathan David Bachrach in Support of Motion (NYSCEF Doc No. 125)
Affirmation of Andrew Citron (NYSCEF Doc No. 126)
Special Request for Immediate Hearing (NYSCEF Doc No. 127)
Exhibit 1 - Contract (NYSCEF Doc No. 128)
Exhibit 2 - Check (NYSCEF Doc No. 129)
Affirmation of Andrew Citron (NYSCEF Doc No. 147)
Calendar No. 34 (Motion Sequence 7 - Defendant's Cross-Motion to Permit Amendment of Answer and Condition Any Order to Deposit $190,000.00 on Termination of the Notice of Pendency)
Notice of Cross-Motion (NYSCEF Doc No. 118)
Affirmation of Andrew Citron, Esq., in Support of Cross-Motion and in Opposition to Motion (NYSCEF Doc No. 119)
Affirmation of Nathan Brach in Support of Cross-Motion and in Opposition to Motion (NYSCEF Doc No. 120)
Exhibit A - Proposed Answer (NYSCEF Doc No. 121)
Exhibit B - Emails (NYSCEF Doc No. 122)
Affirmation of Faigy Gross in Support of Motion and in Opposition to Cross-Motion ((NYSCEF Doc No. 124)
Affirmation of Andrew Citron (NYSCEF Doc No. 126)
Special Request for Immediate Hearing (NYSCEF Doc No. 127)
Exhibit 1 - Contract (NYSCEF Doc No. 128)
Exhibit 2 - Check (NYSCEF Doc No. 129)
Affirmation of Jonathan D. Bachrach (NYSCEF Doc No. 133)
Affirmation of Andrew Citron (NYSCEF Doc No. 147)
Affirmation of Jonathan D. Bachrach (NYSCEF Doc No. 259)
Exhibit 1 - Photo (NYSCEF Doc No. 260)
Exhibit 2 - Plaintiff's Special Notice for Discovery and Inspection of Documents (NYSCEF Doc No. 261)
Exhibit 3- Response to Notice for Discovery (NYSCEF Doc No. 262)
Exhibit 4 - Handwritten Entries on Proposed Amended Complaint (NYSCEF Doc No. 263)
Letter to Court from Andrew Citron (NYSCEF Doc No. 276)
Calendar No. 35 (Motion Sequence 9 - Plaintiff's Motion to Disqualify Defendant's Counsel) Notice of Motion (NYSCEF Doc No. 131)
Affirmation in Support of Motion (NYSCEF Doc No. 132)
Affirmation of Jonathan D. Bachrach (NYSCEF Doc No. 133)
Affirmation of Jonathan Bachrach (NYSCEF Doc No. 144)
Affirmation of Andrew Citron (NYSCEF Doc No. 147)
Affirmation in Opposition to Motion (NYSCEF Doc No. 149)
Memorandum of Law in Opposition (NYSCEF Doc No. 150)
Exhibit A - Emails (NYSCEF Doc No. 151)
Exhibit B - Emails (NYSCEF Doc No. 152)
Exhibit C - Emails (NYSCEF Doc No. 153)
Exhibit D - Emails (NYSCEF Doc No. 154)
Reply Affirmation in Support of Motion (NYSCEF Doc No. 155)
Reply Affirmation of Jonathan Bachrach (NYSCEF Doc No. 243)
Calendar No. 31 (Motion Sequence 12 - Plaintiff's Motion to Dismiss Defenses and Turn Over Escrow Funds) Notice of Motion (NYSCEF Doc No. 93)
Affirmation in Support of Motion (NYSCEF Doc No. 94)
Exhibit 1 - Defendant's Notice of Motion in Motion Sequence 2 (NYSCEF Doc No. 95)
Exhibit 2 - Hon. Justice Wan's Decision on Motion Sequences 2, 3, 4 (NYSCEF Doc No. 96)
Exhibit 3 - Amended Verified Complaint (NYSCEF Doc No. 97)
Exhibit 4 - Defendant's Answer (NYSCEF Doc No. 98)
Affirmation in Opposition to Motion (NYSCEF Doc No. 191)
Reply Affirmation in Support of Cross-Motion (NYSCEF Doc No. 193)
Reply Affirmation in Support of Motion to Strike (NYSCEF Doc No. 195)
Calendar No. 32 (Motion Sequence 14 - Plaintiff's Cross-Motion for Sanctions in Connection with Discovery and for an Order Regarding Discovery, Including the Appointment of a Referee
Notice of Cross-Motion (NYSCEF Doc No. 184)
Affirmation of Jonathan D. Bachrach (NYSCEF Doc No. 185)
Exhibit 1 - Justice Wan's order (NYSCEF Doc No. 186)
Exhibit 2 - Plaintiff's Interrogatories (NYSCEF Doc No. 187)
Affirmation of Jonathan D. Bachrach (NYSCEF Doc No. 194)
Affirmation of Jonathan D. Bachrach (NYSCEF Doc No. 196)
Affirmation of Jonathan D. Bachrach (NYSCEF Doc No. 198)
Exhibit 1 - Demand for Tax Returns (NYSCEF Doc No. 199)
Affirmation of Andrew Citron (NYSCEF Doc No. 201)
This Court has also taken judicial notice of other filed documents in the pending matter (see Allen v Strough, 301 A.D.2d 11 [2d Dept 2002]).
Plaintiff Gross's Contentions
According to the amended complaint in this action, on December 23, 2013, Plaintiff Faigy Gross ("Gross" or "Plaintiff") and Defendant Nathan Brach ("Brach" or "Defendant") entered into a contract whereby Brach would sell and Gross would purchase the property known as 280 Kosciuszko Street, Brooklyn, New York. The contract provided that the purchase price was $880,000.00. A down payment of $190,000.00 payable by Gross to Brach was to be held in escrow. On or about April 27, 2014, the contract was amended - the purchase price was reduced from $800,000.00 to $725,000.00. The contract provided for a closing date of February 27, 2014, and for Gross to have a lien against the property for the amount of the down payment.
Gross alleged that she sent a Time of the Essence letter to Brach on August 7, 2014, seeking to set a firm closing date of September 9, 2014, and that Brach rejected the Time of the Essence letter and breached the contract. Notice of pendency was filed against the property by Gross on or about October 1, 2019.
Gross asserts several causes of action: First (breach of contract), for a money judgment resulting from Gross's loss of time, money investment opportunity, and other damages; Second (promissory estoppel), for a money judgment due to Gross's having lost money after investing time, money, and resources to take actions necessary to consummate the transactions; Third (breach of implied covenant of good faith and fair dealing), for a money judgment for Brach's refusal to close title so he could reap the benefits of the increase in the real estate market; Fourth (declaratory judgment), for judgment that Gross retains a vendee lien in the property; Fifth (breach of contract), for a money judgment due to Brach's not tendering the $190,000.00 down payment to Gross; and Sixth (specific performance), for a judgment that Brach perform each of his obligations required under the contract.
Defendant Brach's Contentions
Defendant Brach's answer denied having entered into the aforesaid contract. He maintained that Plaintiff Gross proposed that she and him combine their real estate investments. She requested his assistance regarding issues with her own investments. Gross cultivated a close personal relationship of trust and confidence with Brach and had unfettered access to his papers. In or about 2013, Gross developed issues with Lazer (Eliezer) Berl concerning residential rental property in Lakewood, New Jersey. Gross offered to pay Brach $190,000.00 to use some of it to induce Berl to leave the Lakewood investment property and Brach could retain the remainder as compensation for his services. The contract for 280 Kosciusko Street was concocted. Gross forged Brach's signature on it or arranged for it to be forged. Gross herself endorsed into Brach's account the $190,000.00 check which she wrote. Everyone, including Berl, agreed to arbitrate the disputes between them before a beis din in Lakewood. Nonetheless, Gross refused to proceed with the beis din arbitration. Brach helped Gross negotiate issues regarding others too. Brach's answer asserted numerous affirmative defenses.
Past Motions
Since this action was commenced in 2019, numerous motions have been filed by the parties. Without reciting the complete details of each, orders were entered, the salient information being as follows:
Sequence 2: Brach's motion to dismiss pursuant to CPLR 3211 (a) was denied on January 21, 2021 by Hon Lillian Wan, J.S.C. Brach sought to dismiss on the grounds of arbitration and award, payment, release, and/or statute of frauds; the complaint fails to state a cause of action for breach of contract; lack of personal jurisdiction over Brach; the Court should not proceed in the absence of a person who should be a party, i.e., Eliezer Perl; and compelling Gross to arbitrate (NYSCEF Doc No. 67).
Hon. Justice Wan's order covered Motion Sequences 2, 3, and 4.
Sequence 3: Gross's cross-motion seeking various aspects of relief was denied on January 21, 2021 by Hon Lillian Wan, J.S.C. The relief sought to bar Brach from making any reference to his alleged religious affiliations or alleging the existence and applicability of Orthodox Jewish law to any matter at issue; bar Brach from interposing hearsay obligations as to the service of process upon his wife as Brach was not a witness to service upon her; order Brach to produce surveillance tapes and/or records recorded by him or at his residence on the morning of December 4, 2019 and March 6, 2020; impose monetary sanctions upon Brach, pursuant to Rule 130 for frivolous conduct for making a motion to dismiss while admitting under oath that he was served, and making a motion to dismiss based on prior arbitration, while admitting under oath that there never was any prior binding arbitration; and leave to amend the complaint if it is deemed defective. (NYSCEF Doc No. 68)
Sequence 4: Gross's cross-motion for the Court to refer the affirmation of Mrs. Brach to the District Attorney was denied on January 21, 2021 by Hon Lillian Wan, J.S.C. (NYSCEF Doc No. 69).
Sequence 6: Various discovery issues were resolved by order on December 20, 2021 of Hon. Lawrence Knipel, J.S.C.: Gross to produce documents in response to Brach's NYSCEF Doc No. 79 request by January 3, 2022; Brach to produce documents in response to Gross's NYSCEF Doc No. 84 request by January 10, 2022; deposition of Gross to be held on or before January 24, 2022; deposition of Brach to be held on or before January 25, 2022.
Sequence 8: Andrew Citron's motion to quash Gross's non-party subpoena and notice to take a deposition of him was granted on February 10, 2022 by Hon. Lawrence Knipel, J.S.C. (NYSCEF Doc No. 143).
Sequences 10, 11, and 13: Hon. Lawrence Knipel, J.S.C., on July 13, 2022, found that neither party complied with the Dec. 20, 2021 order; both parties were to provide documents responsive to the other's demands by Sept. 2, 2022; deficiency letters, if any, were to be sent by October 14, 2022 and responded to by November 11, 2022; Gross was to appear for deposition by February 10, 2023; Brach was to appear for deposition by February 10, 2023; depositions were to be held at the office of the deposing party; Brach's motion seeking a protective order regarding Gross's interrogatories on the basis of being patently overbroad, burdensome, or improper was granted and the interrogatories were stricken without prejudice to service by Gross of a new, proper set of interrogatories, or Gross was to seek the information by a demand for discovery and inspection or through a deposition. The note of issue filing deadline was extended to July 28, 2023; a party's failure to comply shall result in sanctions pursuant to CPLR 3126 upon further motion; and all other requested relief was denied. (NYSCEF Doc No. 202)
Sequence 16: Per the order of Hon. Rachel E. Freier, A.J.S.C., dated February 10, 2023, Brach's motion to schedule depositions was adjourned to June 14, 2023 (NYSCEF Doc No. 267).
Sequence 17: Per the order of Hon. Rachel E. Freier, A.J.S.C., dated February 10, 2023, Gross's cross-motion for sanctions was referred to IAS Part 2 on May 24, 2023, as counsel listed a myriad of instances of frivolous conduct warranting sanctions; this motion is replete with ad hominem attacks on opposing counsel which may merit a warning from the Judge (NYSCEF Doc No. 267).
Pending Motions Still to be Determined
This Court's review of the NYSCEF case folder for this action reveals that there are further motions to be determined in the future:
Sequence 15 (filed Jan. 19, 2023): Plaintiff's motion to amend the order of Hon. Lawrence Knipel, J.S.C., dated July 13, 2022, and extending the discovery deficiency letter deadline to March 1, 2023.
Sequence 18 (filed February 19, 2023): Plaintiff's motion for the appointment of a referee in discovery, to compel answer of Plaintiff's second set of interrogatories, compelling depositions at the courthouse, and imposing sanctions against Defendant.
Sequence 19 (filed February 19, 2023): Plaintiff's motion for sanctions against Defendant for allegedly false claims and irrelevant allegations.
Motions Before this Court
Before this Court for determination are five motions - listed above along with NYSCEF document numbers. Oral argument on them took place on March 1, 2023. They are individually determined as follows:
Calendar No. 33 (Motion Sequence 5 - Plaintiff's Motion to Dismiss Defenses and Turn Over Escrow Funds)
This motion by Plaintiff sought an order striking three affirmative defenses from Defendant's answer - that the amended complaint fails to state a cause of action, that Plaintiff failed to join an indispensable party, and that the parties agreed to arbitrate the matters at issue - and compelling Defendant to deposit $190,000.00 into court. This motion is GRANTED to the extent of striking the three affirmative defenses - that the amended complaint fails to state a cause of action, that Plaintiff failed to join an indispensable party, and that the parties agreed to arbitrate the matters at issue - inasmuch as Defendant's counsel consented (NYSCEF Doc No. 119, para. 3).
That part of the motion seeking to order Defendant Brach to deposit $190,000.00 into court is DENIED. It is settled law that the court may not order a defendant under CPLR 2701 to pay disputed funds into court simply to provide security for satisfaction of a possible judgment (see Rosenblat v Seidman, 243 A.D.2d 699 [2d Dept 1997]; Pepe v Miller Consulting Actuaries, Inc., 221 A.D.2d 512 [2d Dept 1995]).
Calendar No. 34 (Motion Sequence 7 - Defendant's Cross-Motion to Permit Amendment of Answer and Condition Any Order to Deposit $190,000.00 on Termination of the Notice of Pendency)
That part of Defendant Brach's motion which is to condition an order to Defendant Brach to deposit $190,000.00 into court is DENIED as academic; this Court is not ordering the said deposit.
That part of Defendant Brach's motion which is to amend his answer is GRANTED. The few allegations being added are known to Plaintiff Gross from motion practice in this action and are asserted only insofar as they relate to affirmative defenses. Some of the changes merely conform the answer to Hon Justice Wan's order regarding the affirmative defenses; some of them are deleted and others are renumbered. Leave to amend a pleading should be freely given, provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (see Reyes v Brinks Global Services USA, Inc.; CPLR 3025 [b]).
Plaintiff shall not serve a reply to the amended answer (see CPLR 3025 [d]). The added allegations are not in the nature of counterclaims; they merely amplify upon affirmative defenses. From motion practice, it is known that Plaintiff Gross denies Defendant Brach's version of the transactions between them. Serving and filing a responsive pleading would only delay resolution of this action, which has already been bogged down in repetitive motion practice. The few added allegations in the amended answer are deemed denied by Plaintiff. The amended answer, constituting NYSCEF Doc No. 121, is deemed to replace the original one at NYSCEF Doc No. 80.
Calendar No. 35 (Motion Sequence 9 - Disqualify Defendant's Counsel)
This motion by Plaintiff Gross to disqualify Defendant Brach's counsel Andrew Citron is premised on the latter's statements in affirmations being made on "personal knowledge." Plaintiff's counsel Jonathan Bachrach claims that Mr. Citron has no personal knowledge and/or that if he has then he cannot be both a witness and counsel.
Mr. Citron, however, stated that he also relied on "the affidavit of Brach" as well as his personal knowledge (NYSCEF Doc No. 119, para. 2). Also, clearly Mr. Citron is referring to the allegations in the pleadings, based on his knowledge of them - not based on his involvement in the events leading to the underlying dispute. In NYSCEF Doc No. 149, para. 2, this is made clear, when Mr. Citron wrote, "This affirmation is based upon personal knowledge, including of the documents filed in this matter" (emphasis added). Mr. Bachrach himself used the phrases, "I make this affirmation on my own personal knowledge," "I... make this affirmation upon personal knowledge," and others of similar wording (e.g., NYSCEF Doc No. 94, para. 1; NYSCEF Doc No. 101, para. 1; NYSCEF Doc No. 226, para. 1; NYSCEF Doc No. 241, para. 1; NYSCEF Doc No. 255, para. 1 (wherein Plaintiff's attorney attested that Defendant was a "fake rabbi swindling spinster Faigy Gross out of $190,000"); NYSCEF Doc No. 259, para. 1). Attorneys frequently write that the contents of their affirmations are based on personal knowledge. While it would be better practice not to do so unless they indeed have such personal knowledge, they should clarify exactly what they are referring to. If the personal knowledge is about the litigation itself - not the underlying dispute - this needs to be clarified. (See generally Zuckerman v City of New York, 49 N.Y.2d 557 (1980) [Meyer, J., concurring]).
"The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party's law firm, at its adversary's instance, should be disqualified during litigation. Courts must, in addition, consider such factors as the party's valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation" (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 N.Y.2d 437, 440 [1987]. In the instant action, it is clear that Andrew Citron has no personal knowledge of what transpired between the two parties which led to this litigation, and there is no intention on his part to testify because he has nothing to testify about (see Zutler v Drivershield Corp., 15 A.D.3d 397 [2d Dept 2005] ["The plaintiff's motion to disqualify the defendants' attorney was supported by affidavits that were speculative and conclusory as to the attorney's personal knowledge of the conduct at issue...."]).
This motion of Plaintiff borders on being frivolous and is DENIED.
Calendar No. 31 (Motion Sequence 12 - Plaintiff's Motion to Dismiss Defenses and Turn Over Escrow Funds)
This motion duplicates Motion Sequence 5, and is DENIED as such.
Calendar No. 32 (Motion Sequence 14 - Plaintiff's Cross-Motion for Sanctions in Connection with Discovery and for an Order Regarding Discovery, Including the Appointment of a Referee
This Plaintiff's motion for sanctions, appointment of a referee to supervise discovery, and for relief relating to discovery is partly duplicative of Motion Sequence 17, which was referred by Hon. Rachel E. Freier, A.J.S.C., in an order dated February 10, 2023, in the Centralized Compliance Part, to this Part, IAS Part 2. Justice Freier made Motion Sequence 17 returnable before this Part on May 24, 2023.
To wait for May to deal with the issues present in Motion Sequence 17 would waste precious time of the parties and this Court. This Court takes notice that a Note of Issue must be filed by July 28, 2023. There has been procrastination by both parties in pursuing discovery, but this has been exacerbated by the tactics of Plaintiff's counsel, discussed below. In fact, Justice Freier noted the ad hominem attacks of Plaintiff's counsel "which may merit a warning from the Judge" (NYSCEF Doc No. 267).
First, this Court finds that appointment of a referee to supervise discovery is not necessary. The parties merely had to comply with the orders already issued by the Court concerning discovery. CPLR 3104 permits a court to appoint a referee to supervise discovery. However, this power "should be exercised sparingly and its exercise is not warranted in the absence of special circumstances. See, National Dairy Products Corp. v. Lawrence American Field Warehouse Corp., 23 A.D.2d 650 (1st Dept., 1965); Brooks, Hampton, Levy and Walker, Inc. v. Balaban, 22 A.D.2d 679 (1st Dept., 1964); Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3104:1, p. 338" (DiGiovanni v Pepsico, Inc., 120 A.D.2d 413, 414 [1st Dept. 1986]).
Second, at this point, no sanctions against Defendant pursuant to 22 NYCRR 130-1.1 with respect to discovery will be ordered. The reason is that much of the delay in moving forward this litigation is due to the vexatious conduct of Plaintiff's attorney who has overwhelmed the NYSCEF case folder with scurrilous innuendo and slander unbecoming of an attorney (cf. Congregation Yetev Lev D'Satmar, Inc. v Nachman Brach Inc., 20 Misc.3d 1142 [A], 2008 NY Slip Op 51825 [U] [Sup Ct Kings County 2008]). However, going forward, the Court could consider sanctions in the form of striking pleadings if discovery orders are not complied with. The Court will discuss below how this action shall move forward in terms of discovery and otherwise.
Plaintiff's motion is DENIED.
Plaintiff's Counsel's Conduct
In the course of reviewing the papers filed in this action for the purpose of determining the five motions argued on March 1, 2023, this Court has observed that Plaintiff Gross's counsel, Jonathan D. Bachrach, has engaged in personal invective and vilification against Defendant Brach and his counsel. This was already adverted to in Justice Freier's February 10, 2023 order (NYSCEF Doc No. 267). This Court cannot blind itself to the said conduct of Plaintiff Gross's counsel. This included the following in a February 27, 2023 letter (NYSCEF Doc No. 268) impertinently sent to Justice Freier, where counsel wrote:
This office represents Plaintiff Faigy Gross herein.
In your order posted today, copy attached, you characterize my remarks about Andrew Citron, my adversary as "ad Hominem".
Respectfully, an ad hominem argument seeks to discredit an opposing argument by attacking the character of the one making the argument.
Not the case here. I don't know anything personal about my adversary except what I read in his papers on this motion. I know he is a Harvard grad, but straight/gay, tall/short, republican/democrat, Baptist/Bhuddist/Jain...don't know, don't care.
I attack my adversary solely as an habitual liar in court papers. I point out the lies. Because of the frequency and irrationality of his lies, I attribute to him psychosis.
His client swindled an Orthodox spinster out of $190,000 - and is claiming its her own fault. I don't personally attack Mr. Citron for that. I attack him only for lying in court papers about whatever the subject matter is. I would immediately desist from attacking him as a liar if he would stop lying. But can he?
Attached are my papers seeking a referee necessitated by Mr. Citron's lies.
Thank you for your consideration herein.
Respectfully submitted
Said letter is but the latest of a series of vituperative remarks from Plaintiff's counsel, some of the others being as follows:
In a reply affirmation dated May 24, 2022, Plaintiff's counsel wrote that "Defendant's attorney Andrew Citron is a congenital liar, and regrettably, each of his papers herein contains major untruth, the rectification of which needlessly wastes everyone's time and money" (NYSCEF Doc No. 15, para. 1).
In a "supplemental" affirmation dated July 12, 2022 (NYSCEF Doc No. 198), Plaintiff's counsel wrote: "The Rabbi's trash talk about him being paid $190,000 to negotiate is a joke."
In an affirmation dated January 19, 2023 (NYSCEF Doc No. 255), Plaintiff's counsel wrote, "PRESENT AN AGREEMENT OR SHUT UP ABOUT ONE."
In an affirmation dated January 29, 2023 (NYSCEF Doc No. 270), Plaintiff's counsel wrote (para. 2):
THIS CASE IS ABOUT A FAKE RABBI SWINDLING SPINSTER FAIGY GROSS OUT OF $190,000.
THE RABBI ADMITS HE TOOK $190,000 FROM HER BUT SAYS IT WAS HER FAULT, NOT HIS.
The Fake Rabbi invokes the rapist defense: Sure I raped swindled her - but she was asking for it!
Repeatedly in said affirmation, Plaintiff's counsel refers to Defendant Brach as the "fake Rabbi." Said defendant was referred to as "a liar and a cheat who does not recognize the authority of any secular tribunal (para. 18)." Religion was repeatedly injected further into the affirmation, e.g., "[Defendant] lies to the secular government under oath! He is a thief. That's not orthodox. He has admitted his theft to at least one third party. If he was actually orthodox, the Fake Rabbi would not cause distinguished real Rabbis and Academy Heads (roshei yeshiva) to testify in court. But he will for the money (para. 31)." Opposing counsel was described as being "committed to lying and perjury as a way of conducting a lawsuit" (para. 18), and "habitually engage[ing] in perjury in his own affirmations and a fortiori in papers he writes for his client... (para. 21)." The Court was informed, "If the Court does not assign a referee, there will be no end to Defendant's lies and tricks and Ms. Gross will be raped out of her $190,000 down and benefit of her bargain., forget about justice (para. 20)."
Plaintiff's attorney submitted another affirmation dated February 10, 2023, in which he wrote:
5. The good Rabbi swindled $190,000 out of spinster Ms. Gross - pretending to take a personal interest in her. The Rabbi is simply a liar, a cheat a thief. Neither he nor his attorney believe in secular law.
6. There is no prayer in hell the Rabbi will ever give testimony under oath in this action until the sword of judgment is on his throat.
7. He will be happy to see what he can get out of poor Ms. Gross, and then - mark my words - he will make some motion to avoid giving testimony himself.
In open court on March 1, 2023, Plaintiff's counsel called his client a spinster and this Court had to admonish him for doing so. Said term is now considered derogatory and counsel should not be referring to anyone - even more so his own client - as one. A search on Westlaw reveals that the last New York state court decision employing that term was in 1974 (see Matter of Estate of Jones, 46 A.D.2d 801 [2d Dept 1974], revd 38 N.Y.2d 189 [1975]).
"A spinster is a middle-aged or older woman who has never married. Spinster is a derogatory term, do not use it. Spinster is sometimes seen in legal documents, though even there, it is falling out of use. In the 1300s, when the word spinster was first used, it described a woman whose occupation was spinning thread or yarn. At the time, unmarried women were supposed to keep themselves busy, usually by spinning. In the early 1700s the word spinster came to mean any unmarried woman who was beyond the age one usually married. Today, when women are freer to remain single all their lives, spinster carries a negative connotation which implies that the woman is a failure for remaining unmarried." (Grammarist, https://grammarist.com/usage/spinster/ [last accessed Mar. 6, 2023]).
He repeatedly filed vexatious prolix motions and additional correspondence which have consumed the court's time and resources. This Court finds that Plaintiff's counsel's unbecoming conduct has exceeded normal bounds of zealous advocacy. Rather than litigate his client's claim in a professional manner, Plaintiff's counsel has used this judicial forum to improperly inject religion, slander, invective, and personal attacks on opposing counsel into the case file. Moreover, documents have been misfiled under the wrong motion sequence number, forcing this Court to hunt down which documents relate to which motion. Motions have been filed in duplicate.
"We note generally that rule 3.3(f)(2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that [i]n appearing as a lawyer before a tribunal, a lawyer shall not... engage in undignified or discourteous conduct' (see also Galasso, Langione & Botter, LLP v. Galasso, 89 A.D.3d 897, 899 [2011])" (Promed Durable Equipment, Inc. v GEICO Ins., 41 Misc.3d 19 [App. Term 2d, 11th & 13th Dists 2013]).
"It is well established that courts have an obligation, if they become aware of an ethical breach, to report the attorney who committed the ethical breach or fashion an alternative sanction. Judges can take appropriate steps to regulate the conduct of lawyers appearing before them, short of formal discipline (see Matter of First Natl. Bank of E. Islip v. Brower, 42 N.Y.2d 471, 474 [1977]). Under the Code of Judicial Conduct, '[a] judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action' (22 NYCRR § 100.3[D] [2]). Under Rule 2.15[D] of the American Bar Association Code of Judicial Conduct, [a] judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action[.]' Pursuant to Judiciary Law § 2-c(3), '[a] court of record has power... to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.' And finally, '[t]he supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law'" (Judiciary Law § 90[2])." (People v. Perez, 37 Misc.3d 272, 293 [Sup Ct Queens County 2012]).
Plaintiff's counsel is warned to cease the pattern of behavior he has engaged in. Consideration of a referral for attorney discipline awaits further developments in this litigation.
Discovery and Further Motion Litigation
This action should have been a relatively straightforward one. There is only one plaintiff and one defendant. There is only one issue: Did the parties enter into a signed contract for the sale of real property at a price less than one million dollars? Court resources have been devoted to guiding the parties to an ultimate determination yet this has been stymied by the attorneys' failure to persuade their clients to cooperate. Rather than comply with discovery directives from the courts, it has descended into extensive motion practice, some of it repetitive, with 19 motion sequences accompanied by extra supplemental submissions which have no procedural basis in the CPLR. The constant submission into NYSCEF of repetitive affirmations by the attorneys is of no purpose other than to delay discovery and a trial. And all this has been accompanied by one attorney's descent into written invective and personal insult. This must cease.
The number of motion sequences rivals those in complex personal injury actions where there are multiple defendants and multiple third-party actions.
The parties are directed to comply with all prior discovery orders of the Court. The depositions which were ordered and have not yet taken place must be held. Counsels for the parties are to confer and mutually agree on dates for the depositions of their clients. Each party is to be deposed at the office of the deposing party's attorney. Plaintiff shall be deposed first, and Defendant shall be deposed second. Said depositions are to take place by May 1, 2023. However, the date and locations of the depositions are to be reported to this Court by March 20, 2023 in one-page letter co-signed by both counsels. In the event that said date is not reported to the Court, the latter reserves the right to issue an order as is warranted, including the imposition of sanctions and the striking of pleadings.
Failure to do so runs the risk of the pleadings being stricken. Compliance with past Centralized Compliance Part discovery orders must take place.
"It is well established that 'every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction'. 7 Ruling Case Law, Courts, § 62; McQuigan v. Delaware, Lackawanna & Western Railroad Co., 129 NY 50, 52; Davis v. Zimmerman, 91 Hun 489, 493, 494" (Langan v First Trust & Deposit Co., 270 AD 700 [4th Dept 1946]). "It is our view that courts of record (Judiciary Law § 2) are vested with inherent powers, which are neither derived from nor dependent upon express statutory authority, and which permit such courts to do all things reasonably necessary for the administration of justice within the scope of their jurisdiction" (Gabrelian v Gabrelian, 108 A.D.2d 445 [2d Dept 1985]).
So that this action can proceed more efficiently and without unnecessary and duplicative motion practice, especially motions containing the inappropriate remarks of Plaintiff's counsel, this Court determines that no further motions shall be filed without leave of Court (see Breytman v Olinville Realty, LLC, 99 A.D.3d 651 [2d Dept 2012]). If a party deems it necessary to make a motion, it shall first seek leave to do so from the Court in a letter containing no more than two pages.
Under no circumstances shall Plaintiff's counsel submit further documents to the Court describing his client as a spinster, Defendant as a thief, liar, cheat, swindler, or fake rabbi, and Defendant's counsel as a liar. He is likewise prohibited from further use of the word "rape" or other similar inflammatory language in court papers and is prohibited from engaging in scurrilous personal attacks which include references to religious practice.
Additionally, any further documents submitted to the Court purporting to be from the parties shall first be executed by them in ink, sworn to under oath or affirmed under penalties of perjury before an official entitled to take oaths or affirmations, and then scanned and uploaded to NYSCEF; under no circumstances shall documents purporting to be from the parties be submitted to the Court without their actual signature on an original document. This is imposed because the parties must be held accountable and take personal responsibility for their submissions, where allegations accusing the other of falsity have been made. Likewise, for the same reasons, any affirmations from counsel shall bear actual signatures executed on the original copies - not facsimile ones - before they are scanned and uploaded. Such a requirement must be imposed upon the attorneys because of the inappropriate language used by Plaintiff's attorney.
The Court notes that Plaintiff Gross submitted affirmations which were not notarized or even signed (e.g., NYSCEF Doc Nos. 35, 124).
Attorney Jonathan D. Bachrach has submitted affirmations with typed signatures (e.g., NYSCEF Doc Nos. 41, 125, 148, 167, 175, 177, 193, 194, 195, 196, 198, 226, 227, 241, 248, 249, 255, 259) or with no signature (e.g., NYSCEF Doc Nos. 52, 144, 155, 185). So too has Attorney Andrew Citron (e.g., NYSCEF Doc Nos. 59, 60), who has also used pasted photographs of signatures (e.g., NYSCEF Doc Nos. 107, 119, 126, 136, 141, 147, 149, 157, 158, 171, 172, 182, 183, 188, 191, 201, 231, 232, 242, 243).
All further activity with respect to this action shall take place in IAS Part 2. Both counsels are directed to attend a status conference with this Court on Friday, March 10, 2023, as specified below.
Conclusion
Accordingly, it hereby ORDERED as follows:
(1) The affirmative defenses that the amended complaint fails to state a cause of action, that Plaintiff failed to join an indispensable party, and that the parties agreed to arbitrate the matters at issue are stricken.
(2) Defendant need not deposit $190,000.00 into court.
(3) The notice of pendency is not terminated.
(4) Defendant's answer is amended to read as set forth in NYSCEF Doc No. 121, and said amended answer is deemed to have been served properly on Plaintiff, who is deemed to deny the additional allegations and who shall not serve and submit a responsive pleading to it.
(5) Defendant's counsel is not disqualified.
(6) A referee shall not be appointed to supervise discovery.
(7) Sanctions shall not be imposed on Defendant.
(8) Counsels for Plaintiff and Defendant shall confer and mutually agree on dates for the depositions of their clients. Each party shall be deposed at the office of the deposing party's attorney. Plaintiff shall be deposed first, and Defendant shall be deposed second. Said depositions shall take place by May 1, 2023. By March 20, 2023, both counsels shall report to this Court the dates and locations of the respective depositions in a co-signed one-page letter. In the event that said date is not reported to the Court, the latter reserves the right to issue an order as is warranted, including the imposition of sanctions and the striking of pleadings.
(9) Additional discovery shall take place in compliance with the previously issued court orders.
(10) No further motions shall be filed without leave of Court
(11) If a party deems it necessary to make a motion, it shall first seek leave to do so from the Court in a letter containing no more than two pages.
(12) Any further documents submitted to the Court purporting to be from the parties shall first be executed by them in ink, sworn to under oath or affirmed under penalties of perjury before an official entitled to take oaths or affirmations, and then scanned and uploaded to NYSCEF; under no circumstances shall documents purporting to be from the parties be submitted to the Court without their actual signature on an original document.
(13) Any affirmations from counsel shall bear actual signatures - not facsimile ones. Copies of documents bearing said actual signatures shall then be scanned and uploaded to NYSCEF.
(14) Plaintiff's counsel is prohibited from describing his client as a spinster, Defendant as a thief, liar, cheat, swindler, or fake rabbi, and Defendant's counsel as a liar. He is likewise prohibited from further use of the word "rape" or other similar inflammatory language in court papers and is prohibited from engaging in scurrilous personal attacks which include references to religious practice.
(15) All further activity with respect to this action shall take place in IAS Part 2. Both counsels are directed to attend a status conference with this Court on Friday, March 10, 2023, to be held at the Supreme Court Courthouse, 320 Jay Street, Courtroom 18.36., at 10:00 a.m. Counsels are directed to bring with them hardcopies for the Court and opposing counsel of all discovery demands, documents, subpoenas, etc., which they claim have not been responded to and they shall be prepared to discuss when depositions will take place. The hardcopies shall be submitted in folders according to the type of discovery sought. The Court may preclude any discovery concerning which the aforesaid hardcopies are not provided at the status conference.