Opinion
5215/09 Motion Sequence #'s 2. No. 3. No. 4. No. 5.
11-20-2009
KLIN CONSTRUCTION GROUP, INC., Plaintiff, v. BLUE DIAMOND GROUP CORP., and NORTHSIDE TOWER REALTY, LLC, Defendants.
In this action, dealing with a discharged and cancelled November 21, 2008-mechanic's lien and a discharged and cancelled December 17, 2008-surety bond on the same mehanic's lien, the Court has before it: three orders to show cause by defendants BLUE DIAMOND GROUP CORP. (BLUE DIAMOND) and NORTHSIDE TOWER REALTY, LLC (NORTHSIDE); and, a cross-motion by plaintiff KLIN CONSTRUCTION GROUP, INC. (KLIN).
Motion Sequence (MS) # 2 is defendants' May 4, 2009 order to show cause seeking sanctions against plaintiff KLIN and its counsel, Chunyu Jean Wang, Esq., for frivolous conduct by: not discontinuing the instant action after this Court discharged and cancelled the subject mechanic's lien on April 24, 2009, in Northside Tower Realty, LLC v Klin Construction Group, Inc., Index No. 32978/08, 23 Misc 3d 1116 (A); Ms. Wang's utilization of a false jurat in the discharged subject mechanic's lien; and, Ms. Wang's utilization of a false jurat in the affidavit of service of the discharged subject mechanic's lien.
MS # 3 is defendants' May 21, 2009 order to show cause also seeking sanctions against plaintiff KLIN and its counsel, Ms. Wang, for frivolous conduct by: continuing not to discontinue the instant action after this Court again discharged and cancelled the subject mechanic's lien, and discharged and cancelled the surety bond on the subject mechanic's lien in a companion case, on May 6, 2009, Blue Diamond Group, Corp. v Klin Construction Group, Inc., Index No. 32979/08, 23 Misc 3d 1120 (A); plaintiffs false allegations in an April 28, 2009 "amended verified complaint"; plaintiffs false and perjurious verification attached to the April 28, 2009 "amended verified complaint"; Ms. Wang's suborning of perjury by notarizing plaintiffs April 28, 2009 verification; and, plaintiffs violation of CPLR Rule 2103 (b) by not serving the "amended verified compla;nt" on defendants' counsel, but instead upon defendants.
MS # 4 is plaintiffs May 29, 2009 cross-motion to sanction defendants and their counsel for defective service of the May 4, 2009 and May 21, 2009 orders to show cause and allegedly committing perjurious acts. This Court, in a May 29, 2009 short-form order, dismissed MS # 4 on procedural grounds for late and defective service. The cross-motion, signed by Ms. Wang, is dated May 29, 2009, but the affidavit of service claims only that the affirmation in support of the cross-motion was served a day earlier, on May 28, 2009 at 5:45 P.M. by fax.
MS # 5 is defendants' June 17, 2009 order to show cause seeking to hold plaintiffs counsel, Ms. Wang, in contempt for her: violation of this Court's May 29, 2009 order to provide the court at a June 1, 2009, court appearance with her affirmation explaining an alleged medical emergency that caused her absence at the scheduled May 29, 2009 court appearance on MS #'s 2 and 3 for sanctions against plaintiff and Ms. Wang; wilful refusal to answer questions posed by the Court on June 1, 2009 about her May 29, 2009 absence; and, continued failure to produce an affirmation explaining her alleged May 29, 2009-medical emergency. Further, defendants seek sanctions against Ms. Wang for failing to produce an affirmation of a medical emergency for her May 29, 2009 absence and costs for continuing the instant frivolous action.
Despite the Court setting May 29, 2009 as the return date for both MS #'s 2 and 3, to give plaintiff KLIN and Ms. Wang an opportunity to be heard with respect to sanctions, Ms. Wang failed to appear on May 29, 2009. Ms. Wang was afforded an opportunity to be heard at June 1, 2009 and July 13, 2009 hearings on the record. Oral argument on MS # 5, as well as MS #'s 2 and 3, took place at the July 13, 2009 hearing. All parties were given until August 17, 2009 to file post hearing briefs. Only defendants availed themselves of this. Ms. Wang did not file a post hearing brief.
For the reasons to follow, this Court, pursuant to 22 NYCRR § 130-1.1, sanctions Ms. Wang $10,000.00 for her frivolous conduct, which is completely without merit in law and her assertion of alleged material factual statements that are false and possibly criminal. Further, this Court, pursuant to 22 NYCRR § 130-1.1, awards defendants costs of $68,036.78 resulting from Ms. Wang's frivolous conduct: $4,158.83 for actual expenses reasonably incurred from April 27, 2009; and, reasonable attorney's fees of $63,877.95 from April 27, 2009.
Background
The instant action was commenced by plaintiff KLIN on March 4, 2009, with the the filing of the summons and complaint. Plaintiff KLIN sought: judgment on a mechanic's lien for $109,762.98 against BLUE DIAMOND and NORTHSIDE; the award of the $120,739.28 surety bond given on this mechanic's lien; and, related relief. Defendants BLUE DIAMOND and NORTHSIDE moved on April 7, 2009 to dismiss for various violations of CPLR Rule 3211 (MS # 1).
Subsequent to the filing of defendants' motion to dismiss, this Court issued decisions and orders in two related cases: Northside Tower Realty, LLC v Klin Construction Group, Inc., Index No. 32978/08, 23 Misc 3d 1116 (A) on April 24, 2009; and, Blue Diamond Group, Corp. v Klin Construction Group, Inc., Index No. 32979/08, 23 Misc 3d 1120 (A), on May 6, 2009. These two decisions and orders rendered the instant action moot. Therefore, this Court granted MS # 1 and dismissed the instant action on November 9, 2009 (25 Misc 3d 1222 [A]), based upon res judicata and collater estoppel, pursuant to CPLR Rule 3211 (a) (5).
The April 24, 2009 and May 6, 2009 decisions ordered the discharge and cancellation of the $109,762.98 mechanic's lien docketed in the Office of the Kings county Clerk, on November 21, 2008, by KLIN, for labor performed for the improvement of property at 142 North 6th Street, Brooklyn, New York, owned by NORTHSIDE. KLIN v as a subcontractor for excavation and foundation work at the subject premises. NORTHSIDE made final payment on October 7, 2008 of the $1,900,000.00 contract amount owed to its general contractor, BLUE DIAMOND, for the excavation and foundation work at 142 North 6th Street. This exhausted and satisfied the NORTHSIDE to BLUE DIAMOND contractual obligation 45 days prior to the filing of KLIN's mechanic's lien. Therefore, KLIN mechanic's lien was discharged and cancelled because the lien attached to nothing, with the contract sum for excavation and foundation fully paid before the filing of KLIN mechanic's lien. Therefore, I directed the Kings County Clerk to mark the discharge and cancellation of the subject mechanic's lien in the Lien Docket
BLUE DIAMOND, on December 17, 2008, posted a $120,739.28 surety bond discharging KLIN's November 21, 2008-mechanic's lien. Then, KLIN, on December 18, 2008, fled a claim with the Kings County Clerk against the bond for the lien amount of $109,762.98. However, the discharge of KLIN's mechanic's lien rendered KLIN's claim to the bond a nullity and this Court, in Blue Diamond, concluded:
ORDERED, that the December 17, 2008 "Bond Discharging Mechanic's Lien" for $120,739.28, filed on behalf of BLUE DIAMOND GROUP CORP, "conditioned for the payment of any all judgments which may be rendered ... in favor of KLIN Construction Group, Inc.,... to enforce their alleged lien" of November 21, 2008 is moot, and the December 18, 2008 claim filed by respondent KLIN CONSTRUCTION GROUP, INC. for $109,762.98 against said "Bond Discharging Mechanic's Lien," is discharged; and, it is further
ORDERED, that the Kings County Clerk is directed to mark the Lien Bond Docket to reflect that the above-referenced December 17, 2008 "Bond Discharging Mechanic's Lien" for $120,739.28, filed on behalf of BLUE DIAMOND GROUP CORP, is discharged and cancelled.
Defendants' May 4. 2009 order to show cause (MS # 2)
Defendants' counsel, in his affirmation in support of MS # 2, asserts that he received this Court's April 24, 2009 Northside Tower Realty, LLC decision and order on April 27, 2009. Then, that day, he wrote and faxed a letter to Ms. Wang, with a copy of my April 24, 2009 decision and order, asked her to withdraw the instant action as moot and warned her that her failure to do so would result in a sanctions motion [exhibit B of MS # 2OSC]. Ms. Wang, the same day, wrote and faxed to plaintiffs counsel a response rejecting the notice because she had not been served with a notice of entry. Further she alleged that defendants' counsel's letter was a threat, which is "attorney misconduct, and in and of itself sanctionable [exhibit C of MS # 2 OSC]."
The letter by defendants' counsel was not a threat but fair warning of the conseqiences to follow if Ms. Wang continued the instant action. Further, CPLR Rule 2220 (b) states that "[s]ervice of an order shall be made by serving a copy of the order." Notice of entry of an order only affects the time to appeal and the time to re-argue. CPLR § 5513; CPLR Rule 2221 (d) (3). (See Strober King Bldg. Supply Centers, Inc. v Merkley, 266 AD2d 203 [2d Dept 1999]; Selletti v Liotti, 45 AD3d 668 [2d Dept 2007]). It is clear that plaintiffs counsel served Ms. Wang with a copy of the Northside Tower Realty, LLC decision and order on April 27, 2009. Ms. Wang's rejection of plaintiffs counsel's service of the April 24, 2009 decision and order because she was not served with a notice of entry ignored the fact that the instant action was rendered moot by this Court on April 24, 2009.
In MS # 2, plaintiffs counsel also raised the issue of false jurats in the subject November 21, 2009-mechanic's lien and the November 21, 2009-affidavit of service of the mechanic's lien. The November 21, 2008-mechanic's lien was executed by Ming Chin Lin, President of KLIN, who swore that she signed the mechanic's lien in the State of New York, County of Kings [exhibit E of MS # 2 OSC]. The notary who took her signature was plaintiffs counsel, Ms. Wang. Further, Ms. Lin swore in the affidavit of service that she served the mechanic's lien on the same day, November 21, 2008, on defendant BLUE DIAMOND, "by depositing a true copy of [mechanic's line] ... in an official depository of the United States Postal Service in New York State." Ms. Wang signed the jurat as the notary [exhibit E of MS # 2 OSC].
However, in a related Supreme Court, Nassau County action, Blue Diamond Group Corp. v Klin Construction Group, Inc. and Chunyu Jean Wang, Index No. 22040/08, for breach of contract and the filing of false jurats with respect to the subject November 21, 2008-mechanic's lien, both Ms. Wang and Ms. Lin admitted that the mechanic's lien was signed in Taiwan, not New York. Ms. Wang, in her January 14, 2009 affirmation in support of her motion to dismiss [exhibit F of MS # 2 OSC] states in ¶ 3:
Pictures of Ming Chin Lin and Ms. Wang at the marriage ceremony of her brother, Kenny Lin . . . prove the t Ms. Wang, attorney for defendants, witnessed Ming Chin Ling, the President of the corporate defendant, KLIN Construction Group, Inc., sign the refiled Mechanic's Lien on behalf of the corporate defendant in Taiwan. Ming Lin Chin met Ms. Wang in Taiwan on November 21, 2008, because both were attending the marriage ceremony of Ming Chin Lin's brother, Kenny Lin, on November 22, 2008 ... As attorney for the corporate defendant, Ms. Wang is fit to acknowledge her client's signature in Taiwan, especially since the papers are to be filed in the same proceeding as her representation.
In affidavits filed in the Nassau County action, challenging service by BLUE DIAMOND and claiming that they signed the November 21, 2009-mechanic's lien, both Ms. Lin and Ms. Wang swore that they were in Taiwan on November 21, 2009 [exhibit F of MS # 2 OSC].
Defendants' May 21, 2009 order to show cause (MS # 3)
Defendants' counsel, in MS # 3, cited plaintiffs continuation of the instant action despite a second decision and order rendering the instant action moot, on May 6, 2009, in Blue Diamond Group, Corp. Also, defendants' counsel objected to plaintiff filing with the Court, on April 30, 2009, an "amended summons" and an "amended verified complaint" [exhibit A of MS # 3 OSC], dated April 28, 2009, naming an additional party to the action, Berkley Regional Insurance Company, the issuer of the surety bond. Defendants correctly argue that this is a nullity, pursuant to CPLR Rule 3025 (b), because plaintiff failed to obtain leave of the Court to assert allegations against a new party. (See Yadegar v International Food Market, 306 AD2d 526 [2d Dept 2003]; Dauerenheim v Lendlec se Cars, Inc., 202 AD2d 624, 625 [2d Dept 1994]).
BLUE DIAMOND was served on May 5, 2009 and NORTHSIDE was served on May 6, 2009 with the amended summons and amended verified complaint. Defendants' counsel wrote and faxed a letter to Ms. Wang [exhibit C of MS # 3 OSC] outlining the frivolous nature of filing an amended summons and an amended verified complaint with false all jgations and false averments in the verification, and attached a copy of the notice of entry of the April 24, 2009 Northside Tower Realty, LLC decision and order.
The amended verified complaint falsely states in ¶ 17 that "said lien [the subject mechanic's lien] has not been . . . cancelled or discharged." Further, plaintiffs counsel explained to Ms. Wang that the April 28, 2009 verification by KLIN's President, Ming Chin Lin, subscribing to the truth of the statements in the amended verified complaint is materially false and Ms. Wang's notarization of the verification by Ms. Lin, in which Ms. Lin subscribes to the truth of ¶ 17 of the amended verified complaint, that the lien has not been cancelled or discharged, is subject to charges of suborning perjury. Ms. Wang did not respond to the letter or discontinue the instant action.
Plaintiffs counsel on, May 11, 2009, received a copy of the May 6, 2009 decision and order in Blue Diamond Group, Corp. and on that day wrote and faxed a letter to Ms. Wang [exhibit E of MS # 3 OSC], with a copy of the Blue Diamond Group, Corp. decision and order. Again, he asked Ms. Wang to discontinue the instant moot action. The letter warned Ms. Wang that if she didn't discontinue the instant action, her failure "shall result in a second sanctions motion being filed against you, your office and the Plaintiff. .. Maintaining this Action is frivolous conduct. Please guide your conduct accordingly." Ms. Wang never responded to this letter.
Defendants, in MS # 3, emphasize that Ms. Wang's office knew when it prepared the amended verified complaint, on April 28, 2009, that the Court discharged and cancelled the subject mechanic's lien, on April 24, 2009, in Northside Tower Realty, LLC. Therefore, ¶ 17 of the amended verified complaint is false, claiming that the subject mechanic's lien "has not been . . . cancelled or discharged."
Further, defendants argue that Ms. Lin, KLIN's President, who signed the verification, should have known when verifying to the truth of the complaint, that the lien was discharged or cancelled, and Ms. Wang's actual knowledge on April 28, 2009, that the subject November 21, 2009-mechanic's lien was discharged and cancelled, should be imputed to Ms. Lin. "In general, the imputation of knowledge from agent to principal flows naturally from the assumption that the agent will live up to the duty to act in the principal's interest in light of all the pertinent information he has acquired." (Marine Midland Bank v John E. Russo Produce Co, Inc., 50 NY2d 31, 43 [1980]).
Next, defendants claim that Ms. Wang suborned perjury by notarizing the verification when she knew that the contents of the amended verified complaint were false and frivolous. In Matter of Posner (136 AD2d 236, 237 [2d Dept 1988]), an attorney was suspended for five years from the practice of law for "knowingly suborning and/or; tempting to suborn perjury, in that the respondent advised his clients to sign an affidavit that contained statements known by him to be false."
Last, defendants claim that plaintiff violated CPLR Rule 2103 (b) by not serving the amended summons and amended verified complaint on defendants' counsel, but directly upon defendants. Defendants' counsel claims that this is sanctionable conduct.
May 29, 2009 return date for MS #'s 2 and 3
Both MS #'s 2 and #3 for sanctions against plaintiff KLIN and Ms. Wang stated that both plaintiff KLIN and Ms. Wang show cause before this Court on May 29, 2009 why an order should not be made and entered sanctioning them. Ms, Wang, on May 29, 2009, did not appear in this Court. An associate appeared on behalf of both KLIN and Ms. Wang. Defendants' counsel and I both asked the associate about the whereabouts of Ms. Wang. First, he said she was in a hospital. Then, after being directed by myself to telephone Ms. Wang, he reported that she was at the office of an opthalmolgist with her father, who had a medical emergency. The associate was unable to provide the name, address, and telephone number of the doctor, so that my staff or I could verify this excuse. I asked the associate if Ms. Wang could fax an affirmation from the opthalmolgist' office with information about the medical emergency. He reported that Ms. Wang would not do that. Then, I issued a short form order, which stated:
Defendants' OSC's are adjourned to Monday, 6/1/09 at 2:30 P.M. At that time, Ms Wang, KLIN's counsel, must personally appear i nd provide the Court with an affirmation explaining in full detail her absence from today's proceedings, explaining what her Father's medical emergency was, where she had to be with her Father, including the name, address, and telephone number of her Father's medical provider on 5/29/09 in the afternoon.
I also dismissed, in the short form order, plaintiffs cross-motion (MS # 4) for sanctions, against defendants' and defendants' counsel, for untimely and defective service I noted in the last sentence of the short form order that "[t]he Court is perplexed how Ms. Wang can prepare a notice of motion today, but then have a family emergency today?"
June 1, 2009 court appearance and hearing
Ms. Wang appeared on June 1, 2009 for oral argument on MS #'s 2 and 3 and to have an opportunity to be heard on sanctions. Plaintiffs counsel, Jonathan Scher, Esq, reviewed the arguments presented in his orders to show cause for MS #'s 2 and 3 and told the Court [p. 16, lines 2-8]:
On the subject of the lien, we have put her on notice, three separate letters. We have brought two motions to this Court's attention by Order to Show Cause seeking to get the plaintiffs attention. Stop trying to bleed us. Stop trying to vex us. Stop trying to harass us. And plaintiffs answer is, bring me to Court.
Mr. Scher complained about Ms. Wang's absence on May 29, 2009 [pp. 18-20]. With respect to Ms. Wang's absence from Court on May 29, 2009, the following colloquy took ph.ee (p. 20, lines 2-p. 22, line 14]:
MR. SCHER: And worse, on Friday afternoon [May 29, 2009], we asked, and the Court was good enough to accommodate, to ask her associate counsel, who was present in court, to call her and ask her to fax a letter to this Court. THE COURT: Which was not faxed.
MR. SCHER: Which was not faxed. THE COURT: And first, he also made a misrepresentation that she was in a hospital. Then it turns out to be a doctor's office. MR. SCHER: Which we have r o proof of, your Honor. THE COURT: And we still don't even have the name of the doctor she went to. MS. WANG: Excuse me, your Honor, I — THE COURT: You'll get your chance. MS. WANG: All I'm asking, I'll have my opportunity to I ilk because — THE COURT: You're definitely going to get that opportunity 10 be heard. MS. WANG: Okay. MR. SCHER: Your Honor, I expected that consistent with the order that directed that she shall provide the Court with [an] affirmation explaining in full detail, etcetera, that the first order of business, I would have received that upon walking into the courtroom, and I have not. I yield the floor. THE COURT: My order of May the 29th, I did order that Ms. Wang provide the Court with an affirmation explaining in full detail
what happened on Friday, explaining her father's medical emergency, where she went with her father, including name, address, and telephone number of her father's medical provider on Friday afternoon, May 29th. You got an affirmation for me, Ms. Wang? MS. WANG: No, I do not. As we've already indicated in a conversation before the record began — THE COURT: No, no, no. MS. WANG: — that I was not served personally with the Order to Show Cause. There was no Order to Show Cause commanding t bat I personally appear, and your Honor acknowledged that fact and stated that — THE COURT: The first Order to Show Cause of May 4, 2009 directed that you be served personally. Do we have an affidavit of service? MR. SCHER: Yes, your Honor. On Friday, I attempted to submit affidavits of service, and the Court directed that I submit ihem today. THE COURT: I said you wait until till today till she's here. MR. SCHER: Your Honor, I have originals. I have three copies of each. I'm not sure if the Court requires that I file the
original documents. I will defer to the Court's direction. THE COURT: No. For the moment, you can do that, but let me see what you have. (Mr. Scher handing up document to the Court.) THE COURT: According to your affidavit of service, you were at Ms. Wang's office, served on a paralegal who identified himself as Dominick, and you gave his description.
Mr. Scher explained how personal service was made of the OSC at Ms. Wang's office [pp. 22-26]. Ms. Wang objected to "everything that was said [p. 26, lines 19-20]." Vhe Court observed that an attorney must appear on a sanctions motion to have a reasonable opportunity to be heard, pursuant to 22 NYCRR § 130-1.1 [p. 27].
I asked Ms. Wang to produce her affirmation of a medical emergency on May 29, 2009 [p. 29, line 14]. Ms. Wang responded with "Your Honor, I respectfully decline producing affirmation [p. 29, lines 16-17]." Ms. Wang changed the subject and argued that she wasn't properly served with the sanctions' orders to show cause [pp. 30-33].
Then, Ms. Wang attempted to reargue my April 24 Northside Tower Realty, LLC and May 6, 2009 Blue Diamond Group, Corp. decisions and orders [pp. 33-42]. I asked Ms. Wang [p. 37, lines 18-19], "how can you continue a case based on something that doesn't exist anymore?"
Ms. Wang and I had the following exchange, at p. 38, line 8-p. 39, line 15:
THE COURT: The point is, I issued a ruling. Then you go ahead — how could you commence an action on something that I discharged? MS. WANG: The action was commenced before your Honor discharged the lien. It was commenced — THE COURT: The way I look at the calendar, April 24th comes before April 28th. MS. WANG: No, your Honor, the complaint was filed on March 4, 2009. It's in the clerk's minutes. THE COURT: I issued a decision — let's walk through it chronologically. On April 24, 2009, I issued a decision in the case, in the Northside v KLIN Construction case, Northside cases. I issued a ruling. I discharged the lien. Now you go ahead and then you start actions in another index number, but you start something on the same subject matter, so you added the bonding company, which was ultimately discharged on May 6th, but you started another action rally on the same thing over again, so that could be construed frivolous. However, as pointed out by Mr. Scher in paragraph 17, you say that the lien has not been paid, waived, cancelled or discharged,
and that no other action has been brought to recover any claim or any part thereof? Well, there was an action to recover. MS. WANG: No, your Honor. THE COURT: Discharged on April 24th. And yet you got a document dated four days later, April 28th, in which you claim that the lien has not been cancelled or discharged. MS. WANG: No, your Honor. THE COURT: So that's a new math. April 28th is before April 24th? I don't understand.
Mr. Scher spoke to the Court about the alleged false jurats in the subject mechanic's lien and affidavit of service of the mechanic's lien [pp. 67-75]. The Court had an exchange with Ms. Wang about this, in which she concluded that the Court did not have jurisdiction to address her admissions that she took the subject mechanic's lien and affidavit of service signatures in Taiwan, because it was before the Court in Nassau County, not this Court. The following exchange took place, at p. 76, line 2-p. 78, line 6:
THE COURT: So I'd like you to address this, Ms. Wang, including how you took a signature — admit to taking a signature in Taiwan, claiming that it was in Kings County, and then how you sign an affidavit of service in Taiwan, claiming it was in Kings County, and claiming that you deposited it in an official depository
of the United States Postal Service in the State of New York. MS. WANG: Those issues are the subject of the Nassau County action in which our motion to cismiss is pending and has [been] addressed. THE COURT: Well, it's collateral to this case, and therefore, it's — Mr. Scher — MS. WANG: I would beg to defer. THE COURT: You're not going to respond? MS. WANG: I would beg to defer because it is the subject of the Nassau County action in which we have a motion to dismiss, and in which we fully argued those issues. THE COURT: So you're not going to respond at all to that? MS. WANG: I don't think it's relevant to this Court today. THE COURT: I think it's extremely relevant, because he's accusing you of committing perjury, that's all. MS. WANG: I responded that he has based these motions on nothing but frivolousness, things that he has created . . . and making arguments — your Honor did not interrupt my adversary, and I would like the opportunity to respond as you I lave asked me to. THE COURT: And I just want you to respond to the fact,
there's an affirmation in a Nassau County case in which you admit you're in Taiwan. There's also — MS. WANG: The subject— WANG: The subject — THE COURT: — an affidavit subsequent to that in which you and Ms. Lin admit that you're in Taiwan. MS. WANG: The issues have been fully argued. THE COURT: Mechanic's lien in Kings County case says you're in Kings County, and the signature you took from her. And you also claim that affidavit of service that you swear that — that it's done, that you mailed it from a United States Post Office depository in Kings County, even though you were in Taiwan on the other action. The other thing swears you're in Taiwan, so address that; go ahead. MS. WANG: The issues have been addressed in the proper forum, which is the Nassau County Court. This Court does not have j jurisdiction to deal with those issues. It should not be the subject of this motion for sanctions.
That same day, June 1, 2009, unknown then to Ms. Wang, Mr. Scher and this Court, Justice Anthony L. Parga, in the Nassau County action, in a short-form order, disqualfied Ms. Wang from the case for her use of false jurats. He noted that "[p]laintiff argues hat the Court is compelled to grant their cross-motion disqualifying defendant's counsel defendant Chunyu Jean Wang for her complicity in the false jurat that was part of the Mechanic's Lien dated November 21, 2008. It is undisputed that a Chunyu Jean Wang aid the President of Klin, Mong [sic] Chin Lin were in Taiwan, together on November 21, 2008." Justice Parga held that "[t]he cross-motion by plaintiff for an order disqualifying counsel for defendant Klin from their representation of defendant Klin in this action is granted."
Further, at the June 1, 2009 court appearance, Ms Wang objected to submitting an affirmation explaining her absence from the May 29, 2009 court appearance [p. 87]. At the conclusion of the day's proceedings I issued a short form order in which I ordered the minutes and gave plaintiff and defendants until 30 days after receipt of the minutes to file post hearing briefs. I ordered defendants to document their claims for costs.
Defendants' June 17. 2009 order to show cause (MS # 5)
Defendants' counsel, in MS # 5, seeks to hold Ms. Wang in contempt for: failing to appear in court on the May 29, 2009 return date for MS #'s 2 and 3; her continued violation of my May 29, 2009 order to provide the Court with an affirmation explaining her alleged May 29, 2009 medical emergency; her refusal to answer questions at the June 1, 2009 hearing about her May 29, 2009 absence; her execution, notarization and service of the subject November 21, 2009 mechanic's lien, with false jurats; and, sanctions and costs for her false jurats and false averments in ¶ 17 of the April 28, 2009 amended verified complaint, the April 28, 2009 verification, and her suborning of perjury by notarizing the April 28, 2009 verification. Ms. Wang was ordered in this OSC to "appear in Cow personally on the return date of this motion, to answer the questions of this Court" and she was further "cautioned and advised that... the personal obligation upon her to a tend and be physically present in court on the return date of this motion shall not be excused by appearance of any other counsel ... for her on the return date of this motion."
On June 26, 2009, the return date for MS # 5, Ms. Wang violated the OSC and did not appear. Counsel for Ms. Wang claimed that personal service was not made and therefore defective. I adjourned the OSC to July 13, 2009, issuing a short form order, to resolve if Ms. Wang was properly served, and "if the Court finds proper service the Court will then address the substance of the OSC." Also, I directed Ms. Wang to provide the Court on or before July 13, 2009 with an affidavit of actual engagement, pursuant to 22 NYCRR § 125.1, to explain why she failed to appear. Again, I ordered Ms. Wang to provide an affirmation explaining her May 29, 2009 medical emergency.
1 extended the time for all parties to file and serve post hearing briefs with respect to the June 1, 2009 sanctions hearing to August 3, 2009.
July 13. 2009 court appearance and hearing
Ms. Wang, at the commencement of the July 13, 2009 hearing, objected to providing the Court an affirmation explaining her absence from Court on June 26, 2009 because she claimed that she was not personally served with MS # 5 [pp. 89-91]. With respect to her failure to provide the Court with an affirmation about her father's alleged medical emergency, on May 29, 2009, she again argued that she was not personally served with the MS #'s 2 and 3 orders to show cause [pp. 97-99],
Further, Ms. Wang argued that she should have had prior notice by Mr. Scher that he was seeking ex parte the orders to show cause before the Court. The following exchange took place at p. 99, lines 8-20:
MS. WANG: Notice was never given to me. May I have an opportunity to be heard, your Honor? THE COURT: You can be heard, but I asked you why you haven't given me an affirmation of actual engagement. MS. WANG: I am trying to get to that if you would allow me. THE COURT: Get to it, please. MS. WANG: Because no notice was given to me or my firm prior to the filing of the ex parte Order to Show Cause in compliance with court rules and CPLR. Everything that the Court and Mr. Scher has done has been in violation of the Court rules and CPLR. There was no notice
Ms. Wang claimed that her July 10, 2009 notice of cross-motion, cross-motion and affirmation in opposition to MS # 5 and in support of cross-motion, cited CPLR sections that required notice to an opposing party before a movant can seek a judge's signature on an order to show cause, [p. 100]. However, her notice of cross-motion, cross-motion and affirmation in opposition to MS # 5 and in support of cross-motion, dated July 10, 2009, was deemed a nullity by me [pp. 224-226]. It was not served and filed in a timely manner, pursuant to CPLR Rule 2215. Also, the $45.00 filing fee was not paid to the County Clerk or stamped on the notice of motion because it was not filed with the Kings County Clerk. Ms. Wang's affirmation in the nullified cross-motion, despite her assertions to the contrary on the record, fails to cite any CPLR sections or case law, in support of her proposition that she should have been put on notice by Mr. Scher prior to his seeking ex parte orders to show cause for sanctions and/or contempt.
Further, Ms. Wang argued that she did not need to produce an affirmation of medical emergency, because she was not served [pp. 98-99]. This is flagrant disregard and wantton disrespect for a valid court order. On May 29, 2009, in open Court, her associate was given a copy of the May 29, 2009 handwritten short form order ordering her to provide the Court with this affirmation.
Ms. Wane, in arguing that she needed notice before Ms. Scher sought ex parte orders to show cause, stated, at p. 100, lines 17-24:
MS. WANG: There was no notice prior to the filing of the ex parte Order to Show Cause, no statement of a hearing date or when the Order to Show Cause would be sought before your Honor. This causes prejudice to me, requiring my personal appearance every time an Order to Show Cause is signed ex parte without notice, return date set at just a few days after the date of service and papers never properly served.
Ms. Wang overlooked that none of the orders to show cause in MS #'s 2, 3, and 5 sought temporary injunctive relief. The Uniform Rules for the Supreme Court and County Court (22 NYCRR § 202.7 [f]) require that:
Any application for temporary injunctive relief . . . shall contain, in addition to the other information required by this section, an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application
Therefore, Mr. Scher was not required to provide notice to Ms. Wang when presenting to the Court the ex parte orders to show cause that were MS #'s 2, 3 and 5. Mr. Scher pointed this out in oral argument [pp. 205-206].
With respect to the traverse hearing, to determine if personal service of MS # 5 was effective, Mr. Scher presented four witnesses. The first witness was David Smith, a licensee process service, who testified how he served the MS # 5 the order to show cause, on the afternoon of June 19, 2009 [pp. 108-127]. He went to Ms. Wang's office in Flushing, New York and after an exchange of words with one of Ms. Wang's office employees, he placed the order to show cause on a counter and then took picture;; of the papers on the counter with his cell phone. The photos were admitted into evidence without any objection by Ms. Wang [p. 135]. He left the office, went downstairs, flagged down two police officers from the 109th Precinct and then returned to Ms. Wang's office with the two police officers. In the presence of the officers, according to Mr. Smith, Ms. Wang accused him of harassment and making racist remarks to her [p. 116].
Mr. Scher's second witness was Sergeant Brian Natoli of the 109th Precinct [pp. 135-158]. Sgt. Natoli testified that he and his partner were flagged down by Mr. Smith in the street, outside the building that contains Ms. Wang's office, on June 19, 2009. Mr. Smith told them that he was having trouble serving papers. Then, Sgt. Natoli and his partner went upstairs with Mr. Smith to the law office [p. 142]. Set. Natoli testified that he knocked on the outer door of Ms. Wang's office for several minutes. Someone eventually opened the door [p. 144] and he spoke to several people in the office, including Ms. Wang [p. 145]. Sgt. Natoli answered the following questions posed by Mr. Scher, at p. 144, line 22-p. 146, line 22:
MR. SCHER: Let the record reflect that the witness — forgive
me. Let the record reflect that the witness was gesturing with his hand in the direction of Ms. Wang. Are you referring to Ms. Wang? A. I recognize her. Yes. THE COURT: Is that the lady you were talking to? THE WITNESS: That is correct. THE COURT: I will let the record reflect he has identified Ms. Wang. MR. SCHER: Thank you, your Honor. A. When I asked, "Why am I here?," she proceeded to say that the man, Mr. Smith, was harassing her. Q. She used the word "harassing'? A. Yes. She also used the words — he was using derogatory terms towards me, calling her names, like racial names. So, after my investigation I came to figure out that was trying to refuse these papers that he was serving on her. Q. Did you get a chance to see those papers? A. I did see the papers on the desk. Q. When you say on the desk, was it a reception desk? A. A reception desk.
Q. And I'm going to ask you to try and recall when you opened the door was the reception desk to the right of you, left of you, near to you, far away from you, where? A. To the left. Q. When you say to the left, to the left of the door? A. To the left of the door. Q. The papers were they near you, were very, very far away from your; somewhere in the middle on this desk? A. Two feet from me. Q. When you say two feet from you, do you mean two feet to the left of you?
A. Two feet to the left.
Q. And where on the desk? On the top? A. On the top of the desk. Q. Thank you. And so please continue what happened next. A. I said that "Do you — "You're calling me here. I came here. I got flagged down because you will not accept this service of process." And she says that she doesn't need to accept it. I proceeded to say, "I'm not a lawyer. I'm not an attorney. I don't know the law, but you show me somewhere that says you don't
need to accept these papers." Again, she said, "I don't need to accept this." And I said, "Please show me on paper. I'm a sergeant. I'm not qualified as an attorney to say if you need to accept these or not," nor did she ever produce any documentation that she said she didn't have to accept these papers.
Sgt. Natoli identified Mr. Smith's cell phone photographs that showed the orders to show cause on the reception counter [pp. 146-147]. He also testified that Ms. Wang refused to give Mr. Smith her business card, but she gave one to Sgt. Natoli who could get necessary information for Mr. Smith [pp. 147-148]. Then, Sgt. Natoli returned the business card to Ms. Wang [pp. 148-149]. Mr. Scher's direct examination of Sgt. Natoli concluded, at p. 150, line 14-p. 151, line 20]:
Q. When Ms. Wang said she doesn't have to receive those papers, was it understood by you she was referencing the papers that were still physically located on that reception desk? A. Yes. Q. So she knew that the papers were on — on the reception desk the whole time? A. Could you repeat that again. Q. Was it your understanding that at the time that you gave the business card back to Ms. Wang that she understood that the
papers were sitting in her office on her reception desk the whole time? A. Yes.
Q. Is there any possibility that she did not understand that t lose papers were the subject of dispute?
A. No. Q. Was there any possibility that she was saying she did not have to receive the papers, but she was referring to some other papers other than the papers on the reception desk? A. No. Q. So it's your testimony she knew exactly what it was that were the papers that Mr. Smith was serving upon her? A. Yes. Q. And, to tie it all up I'm going to direct your attention to documents marked CI, C2 and C3. Are these photographs a fair and accurate representation of the documents being — that were served upon Ms. Wang on June 19? A. These are the documents that I saw. Q. Were already physically present? A. Were already there when I entered the room. Q. Very well. Thank you, sir. Sergeant Natoli, I have no
further questions.
Ms. Wang cross-examined Sgt. Natoli [pp. 151-159]. Ms. Wang asked him if she complained of racist remarks by Mr. Smith. Sgt. Natoli responded that nothing was said in his presence that was criminal [pp. 153-155]. The following colloquy took place betweer Ms. Wang and Sgt. Natoli, at p. 155, line 10-p. 157, line 11:
Q. How did our conversation go in terms of you came back — A. Beyond you being hysterically screaming at me and Mr. Smith for dropping off the papers, so in my rationale I could have arrested your for disorderly conduct for complete annoyance and alarm, but I took it on my best interests to solve the problem without escalating it to the next level. Did you ever once — Q. I was yelling hysterically at you. Can you go into detail about this? A. When you kept yelling at me that "I don't have to accept these papers, I don't have to accept these papers," constantly — wouldn't say at the top of your lungs, but pretty loud.
Q. How did you respond to my statement that
A. I'm a very patient person.
Q. — that he made racist remarks to my office?
A. I asked Mr. Smith if he did, and he said he didn't. Q. What did you do? Did you walk outside the office? A. I discussed it with him right there with him at the first... Did Mr. Smith make any racial remarks? No, he did not in my presence. Q. And you went outside to ask Mr. Smith "Can you recall the facts of what you did step by step."?
A. I spoke to Mr. Smith in the hallway to solve the problem because you were, very agitated by his presence, so I needed to take tne situation outside for him — for his side of the story as I also spoke to you inside to hear your side of the story.
Q. You are on the stand under oath, right? A. That's correct. Q. When you came back, returned me my business card, what did you say to me and what transpired then?
A. What did I say to you? I don't recollect what I said to you other than maybe "Have a good day."
Q. Just let you leave without making any more comments or complaints about that racist remark or Mr. Smith being racist? A. Other than when I handed your business card. I left
with my officer. Q. So you're saying that I acted hysterically, but then I just let you leave with a comment of "Have a good day," in order to resolve this racist comment? A. I didn't need your permission to leave. I could have left before if I wanted to. Q. Are you saying that's how you resolved the matter? A. Yeah. You were served the papers. Mr. Smith got his contact information which made him happy and his supervisor happy.
Mr. Scher then presented two paralegals from his support staff as witnesses, who testified about how they mailed and sent by Federal Express the MS # 5 order to show cause papers to Ms. Wang's office. Kelly Valladares testified about her mailing of the order to show cause and preparation of her affidavit of service [pp. 159-167]. Ruth Nassir, testified about her serving the order to show cause by Federal Express and preparaion of her affidavit of service [pp. 167-177].
Ms. Wang presented as a witness, Jun Ming Chen, a paralegal employed by her. Mr. Chen testified that he witnessed, on June 19, 2009, Mr. Smith having a conversation with a colleague of his, Dominick Shen, and then Mr. Smith left the documents on the reception counter [pp. 178-180]. Mr. Scher, on cross-examination, elicited from Mr. Chen that he is 24 years old and is trusted by Ms. Wang to talk to clients and prepare documents [p. 188-189].
The Court, at pp. 197-200, held that personal service of MS # 5 to Ms. Wang was effective on June 19, 2009, pursuant to CPLR § 308 (1), and also upon her by service on Mr. Chen, "a person of suitable age and discretion at the actual place of business," pursuant to CPLR § 308 (2). The Court found all the witnesses to be credible. I stated, at p. 197, line 22-p. 198, line 9:
As far as whether or not Mr. Smith said anything that could be considered racially offensive towards Ms. Wang ... that is irrelevant to whether he was there. He was there. Even Mr. Chen admits he dropped off these documents on the desk inside the office. Mr. Smith's testimony is that there was — what I will call... resistance. Nobody seems to want to take the papers. Ultimately, he leaves them on the counter. He took photographs of it. And that's corroborated by Sergeant Natoli who went up there when flagged down by Mr. Chen — I mean Mr. Smith. And even Mr. Chen says he left papers on the desk. So it appears that he got in there.
Then, I cited, [p.198], Bossuk v Steinberg (58 NY2d 916 [1983]), which states, at 918:
We have had occasion to hold that, under CPLR 308 (subd 1), delivery of a summons may be accomplished by leaving it in the
`general vicinity' of a person to be served who `resists' service (McDonald v Ames Supply Co., 22 NY2d 111, 115 [1986]). Thus, under that provision, if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware that he is doing so. (Levine v National Transp. Co., 204 Misc 202, 203 [Sup Ct, Queens County 1953], affd 282 AD 720 [2d Dept 1953]; Chernick v Rodriguez, 2 Misc 2d 891, 892 [Sup Ct, Kings County 1956]).
Further, I noted the Mr. Smith got inside the door to serve the papers and left them on the counter, while in Bossuk, the process server left the papers outside the door. I also cited [p. 199], Spector v Berman (119 AD2d 565 [2d Dept 1986]), in which the process server was denied entrance by the defendant, after telling him on an intercom that he had papers to serve. In Berman, the process server told defendant that he was going to leave the papers in a mail slot. Defendant told the process server that doing this is not good service and the Court will deny it. The Appellate Division affirmed the Nassau County Supreme Court, citing Bossuk, at 566, and holding:
In this case, there were two doors and a number of flights of stairs between the process server and the defendant, but the
principle is the same. The defendant refused to open the doors, although he conversed with the process server, who told him that he was putting the process through the mail slot. The defendant's conduct was of the affirmative evasive character condemned in McDonald v. Ames Supply Co., supra, and it is clear that he was engaged in a deliberate course of evasion intended to frustrate resolution of the legal dispute the plaintiff was attempting to initiate . .. We conclude, as Special Term did, that service was properly made.
This Court, with the traverse issue resolved, heard oral argument on the substance of MS # 5 and gave Ms. Wang an opportunity to explain why she was not in contempt or should not be sanctioned. Ms. Wang objected to presenting the Court with an affirmation about her May 29, 2009 absence from Court "based on the fifth amendment" [p. 202, lines 4-5]. She continued to object to providing an affirmation about May 29, 2009 [pp. 203-204].
I asked Ms. Wang to explain her use of false jurats in the subject mechanic's lien and the affidavit of service, and Justice Parga's disqualification of her representation of KLIN in the related Nassau County action [pp. 212-213]. Ms. Wang argued that her Nassau County affirmation was irrelevant to the instant action [p. 214]. I explained to her that "[both actions deal with the same issue, that mechanic's lien of November 21" [p. 214, lines 10-11]. The following exchange took place, at p. 214, line 15-p. 217, line 19:
MR. SCHER: The lien itself is Exhibit A to the contempt motion. I find it highly disingenuous for Ms. Wang to argue that a lien she presided over the execution of by taking the notary of both the lien itself and the affidavit of service, which her office caused to be filed in the county clerk on the ground floor of this building and she is now the attorney of record seeking to foreclose that lien. That is a lien that was pending before it was discharged and cancelled in Kings County, which action was assigned to none other than your Honor so that she is attempting to foreclose the lien that she filed in this courthouse. It's her action to foreclose that lien. We're moving to dismiss it. And she now has the contemptuous audacity to tell you, your Honor, that this court doesn't have jurisdiction over it, and it's not relevant for her to have to answer questions about the very lien that she put into this county and that she's seeking to foreclose under your presiding over the action. Your Honor, it's utterly outrageous. It actually puts — it spins reality and logic and flips it and puts it on its head. It's utterly, outrageously contemptuous. THE COURT: You want to respond, Ms. Wang? You want
to respond? You wish to respond? MS. WANG: I already started my response. And if you — all the times you interrupted me, my response is a continuous — you already discharged a lien, so the lien isn't really subject to these three Orders to Show Cause, so I don't need to respond. And that — my response is already in the motion to dismiss papers filed with the Nassau County. So your Honor can easily access my response in the county papers. THE COURT: I saw what you had in the Nassau County papers. And you admitted there you were in Taiwan, but the mechanic's lien says you were in Brooklyn, so you can't be in two places at once. I will take judicial notice of that. And the problem you have, you were in Taiwan, you committed a crime by taking your signature — saying you took it in Brooklyn. So that's a problem ... MR. SCHER: Unfortunately, Ms. Wane takes the same tried and untrue and now completely bankrupt argument that she doesn't have to answer to this court because of matters pending in Nassau County. THE COURT: This is what was said on June 1, but we didn't know at that time that on June 1 the judge in Nassau County issued
a decision disqualifying her as counsel, also finding it was a false jurat. MS. WANG: You read the order. THE COURT: I did. MS. WANG: Can you please stop making those comments as if any judge made a decision that I had a false jurat that was made. It's very clear that there were accusations made, so I would object to your Honor finding any criminal orders made, unless you're willing to make that order. If you make that order, then that's different, but — THE COURT: Judge Parga made a finding. MS. WANG: He did not state I made a false jurat. THE COURT: Yes, he did. Why did he disqualify you? He makes a conclusion. MS. WANG: The only reason he disqualified me is because I am the defendant as well as the other defendant's counsel. And that's the reason I was disqualified, that I can't represent both. THE COURT: I will interpret it the way I read it. And he rules that you were complicit in the false jurat that was part of the mechanic's lien. You didn't write it. Anthony—Justice Anthony Parga wrote it. MR. SCHER: But your Honor did —
THE COURT: 135 (a); is that it? Okay, it is. Quote 135 (a) of the Executive Law, sub 2: "A notary or Commissioner of Deeds when exercising powers wherein performance of duties of such office shall practice any fraud or deceit, the punishment not otherwise provided for by this act, shall be guilty of a misdemeanor." That's what the law says.
The Court noted that: exhibit B of the MS # 5 order to show cause is Ms Wang's affirmation in support of her Nassau County motion to dismiss, in which she admitted that she was in Taiwan when the mechanic's lien was exercised [p. 218]; and, exhibit C of the MS # 5 order to show cause contains the affidavit by Ms. Lin, KLIN's President, stating that she was in Taiwan when the mechanic's lien was executed [p. 218] and Ms. Wang's affidavit that she was also in Taiwan when the mechanic's lien was executed [p. 219]. Also, the Court observed that the lien states that it was executed and mailed in Kings County [p. 219].
Next, Mr. Scher argued that Ms. Wang committed other contemptuous acts by: telling this Court at the June 1, 2009 hearing, at p. 78, that it did not have jurisdiction to deal with the issue of the false jurats [p. 220]; Ms. Wang's failure to appear in Court on June 26, 2009, when required to appear by the MS # 5 order to show cause [p. 222]; Ms. Wang's failure to appear at today's hearing without an affirmation of actual engagement for her June 26, 2009 absence [p. 222]; and, Ms. Wang's continued failure to provide this Court with an affirmation about the alleged medical emergency of May 29, 2009 [p. 222].
At the conclusion of the hearing, I reserved decision on contempt and sanctions, and extended until August 17, 2009 the deadline for the parties to provide the Court with post hearing briefs.
Frivolous conduct and 22 NYCRR § 130-1.1
22 NYCRR § 130-1.1 (a) gives the Court, in its own discretion, the authority to award costs "in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees" and/or the imposition of financial sanctions upon a party or attorney who engages in "frivolous conduct." 22 NYCRR § 130-1.1 (c) states:
For purposes of this Part, conduct is frivolous if
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.
Several years before the drafting and implementation of the Part 130 Rules for costs and sanctions, the Court of Appeals in A.G. Ship Maintenance Corp. v Lezak (69 NY2d 1, 6 [1986]), observed that "frivolous litigation is so serious a problem affecting the proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see, NY Const, art VI, §30; Judiciary Law § 211 [1] [b])."
Part 130 Rules were subsequently created, effective January 1, 1989, to give the courts an additional remedy to deal with frivolous conduct. These Rules stand beside Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. The Court, in Gordon v Marrone (202 AD2d 104, 110 [2d Dept 1994]), lv denied 84 NY2d 813 (1995), instructed that:
Conduct is frivolous and can be sanctioned under the court rule if "it is completely without merit. .. and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; or... it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1 [c] [1], [2].
In Levy v Carol Management Corporation (260 AD2d 27, 33 [Id Dept 1999]), the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties holding that "22 NYCRR 130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party." The Levy Court held, at 34, that "[a]mong the factors we are directed to consider is whether the conduct was continued when it became apparent, or should have been apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel (22 NYCRR 130-1.1 [c])." Further "[sanctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large." (Levy at 34).
The Court in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules "is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of New York v. 198 Broadway, 76 NY2d 411; see Steiner v. Bonhamer, 146 Misc 2d 10) [Emphasis added]."
The broad pattern of Ms. Wang's conduct in the instant action is subject to costs and sanctions. Ms. Wang's actions are "completely without merit in law or fact." She asserts "material factual statements that are false." Her failure to discontinue the instant action after April 27, 2009 and violate my orders of May 29, 2009 and June 26, 2009, requiring her to submit affirmations about her court absences, are a "waste of judicial resources."
In Weinstock v Weinstock (253 AD2d 873 [2d Dept 1998]), the Court ordered the maximi m sanction of $10,000.00 for an attorney who pursued an appeal "completely without merit," and held, at 874, that "[w]e therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130-1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [ Emphasis added ]." Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v De Santis (36 AD3d 734 [2d Dept 2007]), affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as "appropriate in view of the plaintiffs waste of judicial resources [Emphasis added]."
In Navin v Mosquera (30 AD3d 883 [3d Dept 2006]), the Court instructed that when considering if specific conduct is sanctionable as frivolous, "courts are required to examine `whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent' (22 NYCRR 130-1.1 [c])." In Sakow ex rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct, New York County 2004], the Court held that "[i]n assessing whether to award sanctions, the Court must consider whether the attorney adhered to the standards of a reasonable attorney (Principe v Assay Partners, 154 Misc 2d 702 [Sup Ct, New York County 1992])."
It is clear that a "reasonable attorney" would have discontinued the instant action when notified, on April 27, 2009, that the subject mechanic's lien was discharged and cancelled by the Court. Also, a "reasonable attorney" would not: submit false jurats; assert material false statements in pleadings; not take false statements in verifications as a notary; and, fail to comply with valid orders of the Court to provide affidavits with respect to counsel's absences from court appearances.
Ms. Wang, in ¶ 23 of her affirmation in support of her Nassau County motion to dismiss, claimed that BLUE DIAMOND'S "allegations in the complaint alleging that the defendant falsely executed the jurat. . . with the intent to deceive the court in Kings County ... should be decided by Kings County."
To this Kings County Court it appears that Ms. Wang is ignorant that a notary public, pursuant to Executive Law § 125, "is hereby authorized and empowered within and throughout the state [New York State] to administer oaths and affirmations, to take affidavits and depositions . . . and other instruments in writing." Executive Law § 135 was ultimately derived from the Executive Law of 1892, § 85. In People v Martin (38 Misc 67, 73 [Ct of General Sessions, New York County 1902]), the Court held that "Section 85 of the Executive Law of this State (L. 1892, ch. 683)... simply declares that a notary public may, within this State, do any of those things which are recognized as notarial acts by the law of nations and commercial usage." Thus, a New York State notary public taking a signature in Taiwan, clearly not New York State, violates Executive Law § 135.
Further, Ms. Wang acknowledged in the related Nassau County action that she was in Taiwan on November 21, 2008. However, the jurats for both the subject mechanic's lien and the affidavit of service state that they were executed in Kings County. Executive Law § 135-a (2) states that "[a] notary public . .. who in the exercise of powers, or in the performance of the duties of such office shall practice any fraud or deceit... shall be guilty of a misdemeanor." A "notary's act when untrue constitutes fraud and deceit and is punishable as a misdemeanor under section 1820-a of the Penal Law [now Executive Law § 135-a]; if the notary is a lawyer it can lead to disbarment." (Bloom v Power, 21 Misc 2d 885, 889 [Sup Ct, Kings County 1959], affd 9 AD2d 626 [2d Dept 1959]; affd 6 NY2d 1001 [1959]).
As noted above, Justice Anthony L. Parga, in the Nassau County action, on June 1, 2009, disqualified Ms. Wang from representing KLIN because of her false jurats in the subject mechanic's lien and the affidavit of service of the subject mechanic's lien.
Therefore, it appears that Ms. Wang: executed two false jurats on November 21, 2009; asserted, as material factual statements, false statements in the April 28, 2009 amended verified complaint and verification that KLIN had a valid mechanic's lien that had not been discharged; and, possibly suborned perjury by taking Ms. Lin's signature as the notary for the April 28, 2009 verification. "Nothing could more aptly be described as `conduct completely without merit in . . . fact' than the giving of sworn testimony or providing an affidavit, knowing the same to be false, on a material issue." (Sanders v Copley, 194 AD2d 85, 88 [Id Dept 1993]). In Curcio v J.P. Hogan Coring & Sawing Corp. (303 AD2d 357 [2d Dept 2003]), the Court held that the conduct of plaintiff s counsel "was frivolous because it was without merit in law and involved the assertion of misleading factual statements to the Clerk of the Supreme Court (see 22 NYCRR 130-1.1 [c] [3])." (See Gordon v Marrone, supra; In re Ernestine R., 61 AD3d 874 [2d Dept 2009]; Glenn v Annunziata, 53 AD3d 565 [2d Dept 2008]; Miller v Dugan, 27 AD3d 429 [2d Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Ofman v Campos, 12 AD3d 581 [2d Dept 2004]; Intercontinental Bank Limited v Micale & Rivera, LLP, 300 AD2d 207 [Id Dept 2002]; Tyree Bros. Environmental Services, Inc. v Ferguson Propeller, Inc., 247 AD2d 376 [2d Dept 1998]).
Ms. Wang's conduct with respect to: her use of false jurats and material factual statements that are false; her continued failure to discontinue the instant action when notified of my cancellation and discharge of the subject November 21, 2008 mechanic's lien on April 27, 2009; and, her contemptuous refusal to provide this Court with affirmations as to her Father's alleged medical emergency on May 29, 2009 and her absence on June 26, 2009; is completely without merit in law. This Court, in having to adjudicate MS #'s 2, 3 and 5, conduct hearings and conferences on May 29, 2009, June 1, 2009, June 26, 2009 and July 13, 2009, and draft this decision and order wasted valuable judicial resources.
Therefore, this Court, pursuant to 22 NYCRR § 130-1.1 (a), and as discussed above, has the discretion to award costs for reimbursement of "for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined"' in 22 NYCRR § 130-1.1 (c), and may impose sanctions upon an attorney who engages in frivolous conduct. In his post hearing brief, defendants' counsel, Mr. Scher, submitted detailed documentation with respect to defendants'"actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct," from April 27, 2009 to the August 17, 2009 submission of the post hearing brief. The documentation demonstrates that defendants had actual expenses, which the Court deems reasonably incurred, of $4,158.83, resulting from Ms. Wang's frivolous conduct. Further, with respect to reasonable attorney's fees, Mr. Scher billed $53,910.45 (108.91 hours at $495.011 per hour, pursuant to Retainer Agreements, submitted with the post-hearing brief), and his associate, Austin Graf, Esq., billed $9,967.50 (26.58 hours at $375.00 per hour, pursuant to Retainer Agreements, submitted with the post-hearing brief). This total of $63,877.95 ($53,910.45 + $9,967.50) is deemed by the Court as reasonable attorney's fees resulting from Ms. Wang's frivolous conduct.
The total of costs and attorney's fees for reimbursement to defendants is $68,036.78. Further, the totality of Ms. Wang's improper conduct and waste of judicial resources mandates this Court to impose the maximum sanction of $10,000.00. Taking into account the financial burden that Ms. Wang now faces in paying $78,036.78 in costs and sanctions, the Court does not find Ms. Wang in contempt. However, if Ms. Wang fails to comply with this decision and order, she is subject to contempt proceedings.
Conclusion
Accordingly, it is
ORDERED, that the cross-motion of plaintiff KLIN CONSTRUCTION GROUP, INC. (Motion Sequence # 4), for costs and sanctions against defendants BLUE DIAMOND GROUP CORP. and NORTHSIDE TOWER REALTY, LLC, and their counsel, for frivolous conduct, is denied in its entirety; and it is further
ORDERED, that the orders to show cause of defendants BLUE DIAMOND GROUP CORP. and NORTHSIDE TOWER REALTY, LLC (Motions Sequence #s 2, 3 and 5), for costs and sanctions against plaintiff KLIN CONSTRUCTION GROUP, INC. and Chunyu Jean Wang, Esq., counsel for plaintiff, and to hold Chunyu Jean Wang in contempt (Motion Sequence # 5), is granted to the extent that, after conducting a hearing on June 1, 2009 and July 13, 2009, to determine if Chunyu Jean Wang, Esq., engaged in "frivolous conduct," as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (c) and that Chunyu Jean Wang, Esq. was granted "a reasonable opportunity to be heard," pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (d), the Court finds that Chunyu Jean Wang, Esq. engaged in "frivolous conduct," as defined in 22 NYCRR § 130-1.1, in the instant action, by: conduct completely without merit in law; as: erting material factual statements that are false; using false jurats; wilfully failing to comply with valid court orders; and, wasting judicial resources; and it is further
ORDERED, that Chunyu Jean Wang, Esq., pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.2, shall pay: $4,158.83 for reimbursement of costs for actual expenses reasonably incurred; and, $63,877.95 for reimbursement of reasonable attorney's fees reasonably incurred; to Jonathan Scher, Esq., counsel for defendants BLUE DIAMOND GROUP CORP. and NORTHSIDE TOWER REALTY, LLC, c/o The Scher Law Firm, LLP, One Old Country Road, Suite 385, Carle Place, New York 11514, within thirty (30) days after service of the notice of entry of this decision and order; and it is further
ORDERED, that Chunyu Jean Wang, Esq., pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130-1.3, shall pay a sanction of $10,000.00, to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210, within thirty (30) days after service of the notice of entry of this decision and order.
This constitutes the Decision and Order of the Court.