Opinion
105190/07.
November 17, 2010.
DECISION AND ORDER
On September 22, 2010, I declined to issue an order to show cause submitted by plaintiff's attorney. See the decision on motion sequence number 003 dated September 22, 2010 ("Decision").
Instead, based on the submission, I referred the conduct of defendants' attorney to the Departmental Disciplinary Committee. I did so because I was not present at the deposition where the offending conduct underlying the proposed motion occurred and because I believe that the defendants' attorney's conduct at that deposition, his offensive comment to the stenographer, and his belligerence in the courtroom concerned me as a matter of professional fitness, rather than a matter for sanctions under 22 NYCRR 130-1.1.
Moreover, I thought that neither lawyer had been punctiliously professional in a variety of ways as the collection dispute — between plaintiff, successor judgment creditor, and defendants, judgment debtors — progressed before me. Not only did defendants' lawyer refuse to accept my determination that the rules governing Article 31 pre-trial discovery were inapplicable to the instant enforcement proceeding, he seemed unable to appreciate that a written submission from one of his individual clients would have had much more persuasive effect than his bluster on their behalf. These matters, as well as those presented in the order to show cause informed my referral and declination of initiation of the motion.
Also important, and relevant to this decision, is that the handling attorney for plaintiff had too frequently sought to adjust rulings I made, not only by initiating change to dates I set, but also in his failure to adhere to my decision on the motion for contempt. He noticed for settlement a proposed order which did not comport with the directions I made on the record as reflected on the transcript and so I drafted the order myself. Significantly, I refused to grant the request to direct the production of documents by the witness in advance of the deposition which would purge the contempt, but directed that they be brought to the deposition. Notwithstanding this, the attorney seems to have demanded that they be provided in advance. In the event, as indicated in the transcript which was submitted, none of the material was in the room during the deposition; when the witness testified he had delivered material, the attorney admitted that it had not been reviewed yet. The result is that, through no fault of his own, the witness could not refer to his own material. This misconduct by the examining lawyer is the particular reason why, in declining the order to show cause, I held that the contempt had been purged and no continuation of the deposition would be considered. Consistent with this analysis, I wrote that my decision declining the order to show cause finished the dispute, implying that further collection efforts, if advised (and I included an exhortation that plaintiff pause), should be in a new petition.
Nevertheless, within hours of being informed of the decision, this motion apparently was prepared. It was served, according to the affidavit of service "by overnight delivery by Federal Express" on September 23, 2010. This is the manner that the Decision directed for service thereof.
Curiously, the morning this motion was submitted, I learned of it from the very person one would expect to be reluctant to contact me, namely, defendants' attorney. He advised my chambers that he had learned of it by a e-courts notification, but did not have it. I had my law clerk respond that no submission or further effort was required of him until he heard further from me.
In this motion, plaintiff requests a reassignment of this matter to another judge, apparently in reference to my having stated in the Decision that I was disabled from hearing any matter in which the defendants' attorney participates due to my referral of him to the DDC. It otherwise asks for the identical relief sought in the order to show cause I declined to sign. Although not couched as a motion to reargue under CPLR 2221, it is just that, and therefore it is appropriate for me to determine it. This new motion is disingenuous, and for all the reasons above, it is denied.
For a while I considered whether sanctions against plaintiff's attorney for the making of this motion were appropriate. In addition to the foregoing, the proposed order to show cause underlying the Decision is missing as an exhibit, while the transcript that the Decision indicated need not be public is included. Ultimately, I determined that this written description of his professional thoughtlessness, if not outright frivolity, would be adequate. Pressing sanctions, or a hearing on service of the motion, would only keep this matter alive before me, and it should be put to rest.