nys failure to comply with orders dismiss order

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At an IAS Term, Part27 ofthe Supreme Court of theState of New York, held inand for the County ofKings, at the Courthouse,

at Civic Center, Brooklyn,New York, on the 1st dayof A pril2008

Justice

CONGREGA TION YETEV LEV D'SATMAR, INC.,LUDOVICK WEISZ and JACOB SCHONFELD,

PlaintiffsDECISION AND ORDER

-against-Index No. 13224/90

NACH:'dAN BRACH INC. W a26 ADAR N.B.CO W .. CONGREGATION BETH JOEL, BETHFEIGE INC., NACHM AN BRACH and BAY RIDGE

FEDEF AL SAVINGS AN D LO AN A SSOCIATION,

Defendants.

Notice of M otiodA ffidavits (Affirmations) AnnexedNotice ofCross-Motion/(Affirmations)Annexed

Renly Affirmation and in Further Support of the M otion

Papers Numbered

2

3

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The only rem aining issues in this 18-year-old case are counterclaims by defendants

Nachmin Brach, Inc. W a 6 Adar N.B. Corp. (Adar) and Nachman Brach, for the use

and occupancy of the premises at 533-541 Bedford Avenue, Brook lyn, New York, as a

synagogue by plaintiffs Congregation Yetev Lev D Satmar, Inc. (CYL ), and the other

plaintiffs. How ever, defendan ts have failed to fully comply with five discovery orders

issued by m e.

Plaintiffs move, pursuant to CPLR5 3 126 (3), by order to show cause: to strike the

remaining counterclaims o f the Brach defendants and dismiss the action w ith prejudice

due to defendants failure to com ply with my orders of Novem ber 17 ,20 06 , March 2,

2007, and July 6,20 07 ; and, for $10,000 in attorneys fees for four motions to strike that

were prosecuted due to defendants improper conduct($2,500.00per motion). The Brach

defendants cross-move, pursuant to CPLR6 3 103 (a), for a protective o rder to limit and

regulatc the deposition of Nachman Brach.

The B rach defendants and their counsels clear pattern of dilatory and obstructive

conduct, demonstrated by their continued d isobedience to C ourt orders, leaves the Court

with no choice other than granting plaintiffs order to show cause and dismissing the

instant action with prejudice. This renders defendants cross-motion mo ot.

Backwound

Litigation in this real estate dispute commenced in1990, but the genesis of this

matter, dealing with the ow nership of five real property parcels at 533-541 Bedford

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Avenue, Brooklyn, New York, occurred approximately thirty years ago, with a series of

real estate transactions am idst the subsequen t factional schism in the Satmar Hasidic

comm unity. The tortured and tangled historyof this dispute is chronicled in a decision of

Justice Melvin Barasch,Congregation Yetev Lev DSatmar, Inc. v K ahan( 5 Misc3d 1023

(A) [Sup Ct, Kings Coun ty 20041) and my decision(Congregation Yetev LevD Satmar,

Inc. v 26 Adar N.B.Corp. (12 Misc3d 1173 (A) [Sup Ct, Kings County 20061). Rabbi

Joel Teitelbaum, in 1948 incorporated the Sat]nar comm unity as Congegation Yetev Lev

DSatmar, Inc., and becam e the G rand Rabbi C.)r Satmar Rebbe. The Satmars flourishe

in the \;,!illiamsburg section of Brooklyn , and Rabbi Joel Teitelbaum established in 1974

another Satmar comm unity (later named Kiryns Joel) near Monroe, New York, in Orange

County. After Rabbi Joel Teitelbaums death in 1979, his nephew Rabb i Moses

Teitelbaum, was chosen as the new Satmar Rebbe. He appointed one son, Rabbi Aaron

Teitelb, um, as Chief Rabbi o f Kiryas Joel, and another son, Rabbi Zalman Teitelbaum as

chief Rabbi of Williamsburg. Justice Barasch observed inCongregation Yetev Lev

DSatmar, Inc. v Kahan, supra at 3-4:

As a result of the latter appointment, a far-reaching feud erupted

between the siblings and their respective adherents. As the polarization of

t;ie two sides escalated, Satmar Chasidim began to be identified as either

Aaronis or Zalis depending upon to whom they pledged their allegiance.

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The polarization hasso insidiously divided the two camps to the po int

tl iat they each dispute the o ther sides legitimacy to be identified as true

Satmar Chasidim. Control of the Congregations synagogues, cemetery,

assets, charitable, educational and religious institutions and even its

corporate name has been hotly contested both in and ou t of the judicial

forum.

After the death of Rabb i Joel Teitelbaum, besides the factions surrounding Rabbis

Aaron and Zalman Teitelbaum, another group of Satmar Chasidim followed Feige

Teitelbaum, Rabbi Joel Teitelbaums Rebbetzin (a Rabbis wife). This created

animosity, friction and personal clashes between defendant Nachman Brach and the new

Rebbe, Rabbi Moses Teitelbaum. In this schism, Rabbi Moses Teitelbaums adherents

effectik ely excomm unicated Nachman Brach and banned him from entering the

bui1din;:s at533-541 Bedford Avenue, Brooklyn, New York.

However,in 1990, with the property at533-541 Bedford Avenue property

convey1 :d to defendant Adar, a corporation owned by defendant Brach, 26 AdarN.B.

Corp., and its owner, Nachman Brach, installed metal gates over the entrance to the

synagogue[533-541 Bedford A venue], apparently in an effort to keep ou t the members of

Yetev Lev. (Congregation Yetev Lev D Satmar,Inc. v 26 Adar N.B. Corp, 219 AD2d

186, 189 [2d Dept 19961). This decision dismissedCYLs complaint. Subsequently,

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Brach and Adar were granted leave by Supreniz Court, Kings County to interpose

counterclaims for use and occupancy of the 533-541 Bedford Avenue premises, and this

was affirmed. (Congregation Yetev LevD Satmar, nc. v 26 Adar N.B. Corp, 258 AD2d

494 [2dl Dept 19991). Then, Supreme Court, Kings County granted partial summary

judgment to CY L and dismissed the use and occupancy counterclaims. The Appellate

Division, Second Department reversed this order and reinstated the Adar and Brach use

and occupancy counterclaims.(Congregation Yetev Lev D Satmar, Inc.v 26 Adar N.B.

Corp, 300 AD 2d 338 [2d Dept 20021).

I deanwhile, the Appellate D ivision, Second Department affirmed the

administrative order of Justice Michael Pesce, then Administrative Judge of Supreme

Court, lLings County, to have all Satmar disputed matters, including CYL against Adar

and Brach, before one justice, the H on. Melvin Barasch.(Congregation Yetev Lev

D Satmar, nc. v Kahana, 308 AD2d 446 [2d Dept 20031). In October 2004, with Justice

Baraschs retirement impend ing at the endof the year, then Adm insitrative Judge Neil

Firetog assicyed Justice Baraschs inventory to me.

Procedural History

In my April 1 9, 20 05 decision and order in this matter [exhibit D of order to show

cause],I observed, at p.8, that:

I ,ecause the instant case was in suspended animation for several

1 ears with its protracted motion practice, CYL correctly argues that

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to get this case trial ready CY L needs 2dditional time to track down

its witnesses, determ ine if their experts are still available, and be

afforded time to conduct add itional discovery. . . Therefore, the

present note of issue and certificate of readiness must be vacated

ix th w ith and a new note o f issue and certificate of readiness cannot be

iiled until all future discovery is completed.

Further,I ordered exam inations before trial to be com pleted within 180 days after the date

of the notice of entry of this order, and the due date for a new note o f issue and certificate

of readiness to be 2 10 days from the date of the notice of entry of this order. Two days

later, dc fendants appealed my decision and order. My vacating the note of issue and

certific, te of readiness was unanimously affirmed (Congregation Yetev LevD 'Satmar,

Inc. v 26 Adar N.B. Corp, 32 AD3d 376 [2d Dept 20061).

The Brach defendants and their counsel failedto comply with my April 19,2005

decision and order, yet they still filed a noteof issue and certificate of readiness on

Januaq 26,2006. Then,CYL's counsel moved to vacate this. In my June 27 ,20 06

decision and o rder [exhibitE of order to show cause and published at 12 Misc3d 1173

(A), sui lra] I vacated the January 26 ,20 06 filing of a note of issue and certificate of

readiness by the Brach defendants. It was premature and discovery was not completed. I

stated , ;it p.4:

CYL's counsel argues, in paragraph 3of his affirmation in

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support of the motion, that since defenc!mts didn't comply with my

ciscovery order, "your affiant. . . did nt ) t want to expend the scarce

resources of his clients by conducting additional discovery un til such

time as the Appellate Division made a final decision on defendants'

appeal." Further, plaintiffs request that my discovery order be extended

until 90 days after the Appellate Div isim rules on the pending appeal.

Meanwhile, plaintiffs request thatI vacate the January 26, 20 06 note

of issue and certificate or readiness because outstanding discovery was

not completed and that Adar and Brach's note of issue filing "is nothing

more than an attempt to circumvent this Court's April 19 ,200 5 Decision

and Order. . . rather than patiently a w A the Appellate Division's

determination as to whether or not said April 19 ,20 05 Decision and Order

was properly made [p ara pa ph7 of affirmation in support of the motion]."

I ordered all outstanding discovery to be completed within 90 days after plaintiffs'

counse1 serves a copyof the notice of entry of this decision. Further,I ordered a new note

of issue and certificateof readiness to be filed within 120 days afte r service on defendants

of a nolice of entry of this order.

Again, defendants, failed to comply with my d iscovery order. Subsequently,

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plaintiff CYL, pursuant to CPLR 3 126(3), moved to strike defendants counterclaims

and dismiss the action with prejudice.I issued the following short-form order [exhibitF

of order to show cause],on November 17,2006:

Plain tiff s OSC to strike defendants counterclaims is granted

to the extent that defendant will provide plaintiff with a list of all

witnesses, their addresses and a synopsis of their proposed testimony

by 12/1/06 . Plaintiff will then provide defendant with a list of its

witnesses, their addresses, and proposed testimony by 1 2 45/06. All

I3BTSsand discovery to be completed by 2/15/07. Note of issueto

be filed by 3 /15/07. Failure of defendants to comply with this schedule

will result in the automatic striking of defendants counterclaims

pursuant to CPLR6 3 126(3) and dismissal with prejudice.

Discovery demands include production of demanded documents.

Thereafter, plaintiffs served defendants with a dem and fo r discovery and

inspect on. Defendants never responded to this. Defendants served deposition notices fo

three of plaintiffs proposed witnesses beyond the February 15,200 7-deadline. Plaintiffs

then moved for a second time, by order to show cause, to strike defendants

counterclaims, pursuant to CPLR5 3 126 (3) and dismissal of the action with prejudice.

On March2,2007, after hearing oral argumentby both sides,I issued a short-form order

[exhibiG of order to show cause], which stated:

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After vigorous oral argument, plain tiffs OSC to dismiss

c;efendants counterclaim. . . pursuant to C PLR3 126 (3) is denied.

However, defendants counsel on counterclaim has informed the

Court and opposing counsel that no docum ent or reportsof Nachman

Brach, Cipora Katz& Wolf Katz will be used at trial. By3/9/07,

defendants counsel must provide pla int iffs counsel with any docum ents

to be used by Albert Santagata at trial. Any docum ents not produced

by 3/9/07 by defendants counsel to plain tiffs counsel is precluded

jiom use at trial, whether or not previously hr nis he d to pla int iffs

counsel.

In the presence o f opposing counsel the Court visited the

Building Dept. web site and printed5 C. of 0s for 535 Bedford

Avenue and one C. of0 . for 545 Bedford Avenue. These are the

Cert. of Occupancy that were issued by the D ept.of Buildings for

the premises. These six documents are attached andpart of this

order.

All EBTs must be com pleted by5/4/07. Defendants counsel

must file note o f issue by5/25/07.

Counsels for both plaintiffs and defendants exchanged letters proposing deposition

dates [exhibits H, I,J, and K of order to show cause]. In his March26,2007 letter

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[exhibit I of order to show cause] defendants counsel stated that he assum ed that CYLs

counsel didnt wish to depose defendant Nachman Brach again, and in his March30,

2007 ler ter [exhibit K of order to show cause], defendants counsel refbsed to produce

defmdant Nachman Brach for a deposition a h e n t a direction from the Court that he is

require( o appear for a second deposition [the first deposition took place on March 17,

19991 The exchange of letters ultimately resulted in plaintiffs moving, for a third time,

by order to show cause, to dismiss defendants counterclaims, pursuant to CPLR0 3 126

(3), for defendants failure to com ply with discovery orders and to dismiss the action with

prejudic e [exhibit C o f order to show cause].

This order to show cause was heard by m e on July 6,20 07 . That day,I issued the

followi Lg short-form order [exhibit Aof order to show cause]:

After oral argument, pla inti ffs OSC to strike the counterclaim

of defendants Brach,et. al. for failure of defendant Brach to be deposed,

I lursuant to CPL R3 126 (3) is granted to the extent that: Nachman Brach

shall be deposed on Tuesday, 7/10/07, at 11 A.M. at the officesof

rennenbaum and Berger, LLP, 26 Court St., Brooklyn, NY. If Nachm an

3r ac h fails to appear for his deposition on July 1 0,2 007 at 11A.M. the

counterclaims of defendants shall be deemed as dismissed.

On July 9 ,20 07 , defendants counsel filed a notice of appeal ofmy July 6,2 00 7 decision

and order [exhibit B of order to shnwcausc]. Defcndnnt Nachm an B rach and his counsel,

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Noel Hauser, Esq., appeared for the deposition on July 10 ,20 07 . Plaintiffs counsel, in7

2 1 of his reply affirmation , demonstrates thatMr. Hauser, at the deposition [exhibit M of

reply affirmation in support of order to show cause] made at least forty-four speaking

objections and num erous com ments that interfered with the questioning ofMr. Brach, in

violation of 22 NYCRR6 22 1.1 (b) of The Uniform Rules for the Conduct of

Depositions. The following exchange took place, at p.33, lines 8 - 25, of the EBT:

MR. COH EN: Mr. Hauser, I will respectfully ask you [to] limit

your com ments to ob jections and that is; t.

MR. HAUSER: Counsel, I went to law school just like you.A

Ycderal jud ge told m e a long time ago tliat when you com e to a

deposition defending a witness you shouldnt sit there like a plant.

J have no intention of do ing that.

MR. COHEN:

I v R . HAUSER:

J,dR. COH EN:

You w ere given bad advice.

What is that?

You were given bad advice.I am asking that

you limit your comments to objections and thatis it. I am asking

1hat you not help your client.

After about an hour of questioning, Mr. Hauser asked for a break.Mr. Cohen

consented without argument [exhibitN, EBT transcript, p.45, lines 12-14]. However,

when M r. Cohen requested a lunch break, Mr. Hauser refused. The following colloquy

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took place, at p.89, line 2 1 - p. 90, line 13,of the EBT:

M R. COHEN: I am going to call for a break.

It is now 20 m inutcs to2:OO. We are here forR. HAUSER:

almosttwo and a half hours, more than Ihat.

M R . COHEN: I need abou t a half hour.

MR. HAUSER; A half hour? We will see you another day. I

am not prepared to break this deposition fora half hour.

MR. COHEN:

taking a lunch break. It is your decision. You know there is an

Order out. I am asking you not to leave.

If you leave you leave at your ow n peril. I am

(Time noted:1 40 p.m.)

According to pla in tif fs counsel, in both7 7 of his affirmation in support o f the order to

show cause and7 16 of his reply affirmation in support of the order to show cause, Mr.

Hauser and Mr. Brach left and did not return.

In 7 8 of his affirmation in support of thc order to show cause, plaintiffs counsel

states that:

d :fendants and Mr. Hausers arrogant disrespect for this court and

f agrant disregard of the judicial process must be countenanced no

more. Clearly, Mr. Brach appeared but refixed to complete the

depositionso that he may later claim that he complied with the letter

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of the order if not its intent and the Courts oral directive to com plete

the deposition. We h rt he r submit once again that the refbsal to produce

Mr. Brach for a completed deposition is a stall tactic and part of a

long pattern o f defendants flagrant disregard of this Courts prior

discovery orders and schedules which direct,inter alia, for the

depositions of all witnesses, and are a part of defendants dilatory

tactics to frustrate the progress of discovery and delay the prosecution

of their counterclaimsso as to forestall the fo reclosure action tha t is

13resently stayed pendin g a final outcon le of this case. We respectfblly

submit that it is high time for the Court to punish defendants impunity.

The Court agrees with plaintiffs counsel that bothMr. Brach and Mr. Hauser have

demonstrated arrogant disrespect for this court and flagrant disregard of the judicial

process [and it] must be countenancedno more. The instant order to show causeis the

fourth time that plaintiffs moved , pursuant to lCPLR8 3 126 (3), to strike defendants

counterclaims and dismiss the action with prei d i c e . WhenI issued my July6, 2007

decisioi t and ord er, it was clear thatMr. Brachs deposition was to be completed, not

broken. Therefore,in the words of plain tiffs counsel, it is high time for the Court to

punish defendan ts impunity.

Discussion

CPLR 9 3 126, Penalties for re hsa l to comply with order to disclose, states:

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If any party. . . efuses to obey an order for disclosure. . . he

court may make such orders with regard to the failure or refusal as

are just, among them:. . .

3. an o rder striking our pleading3 or parts thereof, or staying

further proceed ings until the order is obeyed, or dismissing the action

or any part thereof, o r renderinga judgm ent of default against the

disobedient party.

1 e use of CPLR6 3 126 (3) for strikins pleadings and/or dism issing an action

is appropriate when the conduct of the o ffending party is willful in impeding the

completionof discovery. Zletz v Wetanson (67 NY2d 711 [1986]), was an action for

breach of an oral partnership agreement and conspiracy. The Co urt affirmed the

dismissal of plaintiffs complaint against one of the defendants, when the plaintiff, at 713

engaged in a co urse of conduct designed to yield one-sided disclosure, culminating in hi

disregard of an order compelling him to answ er. . . nterrogatories, which were found to

be relevant and appropriate. Further, the Court, at 723, held that [wlhere a party in

these ciI cumstances disobeys a court order and by his conduct frustrates the disclosure

scheme provided by the CPLR, dismissal of the complaint is within the broad d iscretion

of the trial court.

In Kihl v Pfefler (94 NY2d 118, 123[1999]), Chief Judge Kaye, writing for a

unanimous court, instructed that:

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IT the credibility of court orders and the integrity of our jud icial system

are to be maintained, a litigant cannot ignore court orders with impunity.

11 tdeed, the Legislature, recognizing the need for courts to be able to

command com pliance with their disclosure directives, has specifically

provided that a "court may make such orders. . . as are just," including

dismissal of an action (CPLR3 126). Finally,we underscore that

c jmpliance with a disclosure order reqiiires both a timely response an d

one that evinces a good-fa ith effo rt to iidrlress the requests meaningfu lly.

1 s will be explained below, defendants' multiple failures to comply in

a timely manner with my discovery orders and their continuous and

continued lack of good faith to attemptf o address pla intif fs discovery

rcquests require me to grant plaintiffs' motion to strike defendants'

ai iswer. [Empha sis added]

In the instant action, the failure of the Brach defendants to comply with my

discovery ordersis similarto the failure to complete discovery inKihl. The Kihl parties

consented to a Nassau County Supreme Court discovery order at a March18, 1996-

preliminary conference. Discovery was ordered to be completed within six months, and

plaintiff was to respond to interrogatories of defendant Honda M otor Com pany w ithin30

days of eceipt of the interrogatories. Honda, latcr that day, served plaintiff with

interrog, tories. AAer not receiving any responl se, on Sep tember13, 1996, almost five

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months after the court-mandated deadline, Honda m oved to strike pl ain tiff s complaint or

compel a response. Plaintiff opposed Honda's m otion and served responses on Decembe

10, 1996. Honda continued to seek dismissal on the grounds that the responses were

"woefdly inadequate and totally unresponsive in clear violation of the Court's Order."

(Kihl at 121). On M arch 3 1, 1997, the trial judg e granted Hon da's motion to dismiss for

failureto comply w ith the preliminary conference order, unless plaintiff adequately

responded within 20 days after the second discovery order was served o n p lain tiffs

coun sel. An issue, not germane to the instant case, arose with respect to whether plaintiff

was pro-Ierly served. The service issue delayed the Court's decision.

Finally, the trial judge struck the com plaint on February 9, 1998. The Second Departmen

affirmec', withtwo dissents on the issue of service of the second order. This broughtKihl

to the Court of Appeals, a s of right, pursuant to CPL R

service ' w e , n which the Court of Appeals mlzd for Honda, Chief Judge Kaye, at 122,

affirm ec the striking o f the com plaint by instructing that,"when apar ty fails to comply

with a court order and frustrates the disclosure scheme set forth in the CPLR,it is well

within tjie Trial Judge's discretion to dismiss the complaint (Zletzv Wetanson,67

N.Y.2d 711 , 713)." [Emphasis added]

5601 (a). Putting aside the

D fendants in the instant action failed to comply with five of my discovery orders:

April 10,20 05; June 27,2006 ; November 17,2006; March 2,200 7; and, July 6,200 7.

On October 26,20 07 , in adjourning this order to show cause to November 16,20 07, in a

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short-fc~rm rder [exhibit M of reply affirmation in support of order to show casue],I

orde ret defendants to file and se rve opposition papers to plaintiffsOSC by 1 1/9/07.

Instead of addressing whether or not I should dismiss the case , pursuant to CPLR 3 126

(3), Mr. Hauser obfuscated the issues in his cross-motion, by attem pting to reopen and

relitiga!e whetherMr. Brach should be deposed at all, and sought to limit the scope and

duratio 1 of the EBT. In support of his cross-motion,Mr. Hauser submitted only his

affirmation, which rehashed almost eighteen years of litigation. This was not only

irrelevant to the instant order to show cause , but his affirmation was rep lete with

inadmi: sible hearsay and double hearsay. Mr. Hauser referred to deposing of Mr. Brach,

in 5 27 of his affirma tion in supportof his cross-motion, as a m ere ploy to further harass

and del,y the defendants and the trial of a simple counterclaim to e stablish a sum of

money o be paid. Mr. Hauser overlooked that plaintiffs are entitled to deposeMr.

Brach, i party, as a matter of law. (CPLRtj 3 101). Mr. Hauser failed to offer any

legitim1 te excuse fo rMr. Brachs five-time failure to comply with my discovery orders.

Defendants blatant failure to comply with my five discovery orders can be inferred

as willfi11and contumacious. Willful is defined as voluntary and intentional (Blacks

Law Dictionary1593 [7* ed 19991)and contum acious conduct is defined as a willful

disobedience of a court o rder (Blacks Law Dictionary292 [7* ed 19991). Defendants

failure to present a legitim ate excuse to the Court for its noncompliance with my

discovery orders makes the strikingof defendants counterclaims and dismissal of the

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instant action appropriate.(Se e Ziskin Law Firm, LLP v Bi-County Elec. Co rp.,43 AD3d

1158, 1159 [2d Dept 20071;Estate of Ort v Ort, 41 AD3d 777 [2d Dept 20071;Russo v

Tolchin,35 AD3d 43 1 [2d Dept 20061;Royal C aterers, LLC v Marine M idland,8 AD3d

549 [2d Dept 20041).

F-ecently, he A ppellate D ivision, Second Department, instructed inMcArthur v

New York City Housing AuthorityA D 3 d p , 2008 NY S lip Op 01 121 [2d Dept Feb .

8, 20081, that:

The nature and degree of the penalty to be imposed pursuant

to CPLR3 126 lies within the sound discretion of the trial court(see

Kihl v Pheffer,94 NY2d 118, 122-123;Rowel1 v Joyce, 10 AD3d

60 1 [2d Dept 20041;My Carpet, Inc. v Bruce Supply Corp .,8 AD3d

248 [2d Dept 20041). The striking of a pleading may be appropriate

when there is a clear showing that the failure to com ply with d iscovery

demands is willful and contumacious(see Townof Southampton v

Salten, 186 AD2d 796 [2d Dept 19921). The willful and contum acious

cJ taracter of a partys conduct can be inferred from the partys repeated

fi ilure to respond to demands and/or to romply with discovery orders

(J .?eHorne v Sw imq ub, Inc.,36 AD3d 8.59 [2d Dept 20071;Sowerby v

Camarda, 20 A D3d 41 1 [2d Dept 20051;Bodine v Lad jvardi,284

AD2d 3 51 ,35 2 [2d Dept 20011).

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(See Suazo-Alvarez v Nordlaw, LL C,-AD3d-, 2008 NY Slip Op 01529 [2d Dept

Feb. 19,20081;Negro v St. C harles Hosp. and Rehab ilitation Center,44 AD3d 727 [2d

Dep t 20071;Bomzer v Parke-Davis,41 AD3d 522 [2d Dept 20071;Casey v Casey,39

AD3d 579 [2d Dept 20071;Maignanc v Nahar, 37 AD3d 557 [2d Dept 20071).

Further, in the instant action, defendants partial compliance with my July 6,20 07

order is insufficient to show compliance with my discovery orders.Mr. Hauser, at the

July 10.2 007 EBT , repeatedly stopped Mr. Brach from answering questions, and

ultimately busted the deposition before plaintiffs counsel finished asking questions.

Partial compliance with discovery requests and court orders, with no reasonable excuse,

has been held to be willful and contum acious conduct.(United States Fire Insurance

Company vJ. R. Greene, Inc., 272 AD2d 148 [1 t Dept 20001;La Valle v Cityof New

York Department of Sanitation, 240 AD2d 639 [2d Dept 19971;Cau ley v Long Island

Railroad Company,234 AD 2d 252 [2d Dept 19961).

The striking of defendants counterclaims and dismissal of the instant action

renders defendants cross-motion m oot.

Costs and sanctions for defeii dants frivolous conduct

The willful and contum acious conduct exhibited by Noe l H auser, Esq., in his

failure to abide with my five discovery orders appears to be frivolous. 22 NYCRRtj

130- 1.1 (a) states:

5 130-1.1. Costs; sanctions. (a) The court, in its discretion, may

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a,ward to any party or attorney in any civ il action or proceeding before

the court. . . costs in the form of reimbursement for actual expenses

reasonably incurred and reasonable attcln ey's fee s, resulting from

f ,ivolous conduct as defined in thisPart. In addition to or in lieu of

awarding costs, the cou rt, in its discretion may impose financial

sanctions upon any party or attorneyin a civil action or proceeding

who engages in frivolous conduct as defined in thisPart, which shall

b :: payableas provided in section 130- 1.3 of this Subpart.

Further.22 NYCRR 0 130-1.1 (b) states that "sanctions may be imposed upon any

attornej, appearing in the action or upon a partnership, firm or corporation with which the

attorney is associated."

22 NYCRR 6 130-1.1 (c) states that:

For purposes of this part, conduct is frivolousif :

( I ) it is completely without meritin law and cannot be supported

by a reasonable argumen t for an extension, modification or

reversalof existing law;

( 3 ) t is undertaken primarily to delayor- prolong the resolution o f

the litiga tion, or to harass or malicicliisly injure ano ther; or

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(3) it asserts material factual statements that are false.

I!t is clear thatMr. Hauser blatantly violated my April 1 9,2 00 5, June 27,2006 ,

November 17,2 006 , March 2,20 07 , and July 6,20 07 discovery orders. On July 10,

2007, a; the EBTof Nachm an Brach,Mr. H a u w condnued to fi-ustrate the process and

prematurely terminated the EB T. There is no question that plaintiffs' counsel incurred

expenscs in prosecuting protracted motion practice to attempt to move the case along.

Discovery wou ld have been completed years ago ifMr. Hauser had not engaged in

dilatorj tactics.

The Court,in Levyv Carol Managem eiit Corporation (260 AD2d 27,3 3[1st Dept

1999]), stated thatin determining if sanctions are appropriate the Court must look at the

broad patternof conduct by the offending attorneys or parties. Further, "22 NYCRR

130- 1.1 allows us to exercise our discretion to impose costs and sanctions onan errant

party. . 'I

The LevyCourt at 34, held that 'l[~]a nc tions re retributive,in that they punishpast conduct. They also are goal oriented, in that they are useful in deterring future

frivolous conduct not on ly by the particular parties, but also by the Bar at large."

The Court, inKernisan, M D . v Taylor, (171 AD2d869 [2d Dept 1991]), noted

that the intentof the Part 130 Rules ''is to prevent the waste ofju dic ial resources and to

deter ve ratious litigation and dilatory or malicious litigation tactics (cf:Minister, Elders

& Deac. ns of Refm. Prot. Church of City of New Yorkv 198 Broadway, 76 NY2d 411;

see Steiner v Bonhamer, 146 Misc 2d lo)." [Em yhasis added]

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In its discretion, a court may award costs and financial sanctions againstan

attorne, or party resultingfrom frivolous conduct(see 22 NYCR R130-1.1 [a]).

(Flaherty v Stavropoulos, 199 AD2d 301,3 02 [2d Dept 1993]). It appears thatMr.

Hausers dilatory conduct m ust be deterred, as noted above, inKernisan, M D . v Taylor.

(See Fenstermaker v Edgemont Union Free School District, -AD3d -7 2008 NY Slip

Op 01343 [2d Dept Feb. 13,20081;Kamen v Diaz-Kamen,40 AD3d 937 [2d Dept 20071;

Transaero, Inc. v Biri Associates, Corp.39 AD3d 738 [2d Dept 20071;Ofman v Cam pos,

12 AD: d 581 [2d Dept 20041).

In Navin v Mosquera (30 AD3d 883 [3d Dept 20061, the Court instructed that

when considering if specific conduct is sanctionable as frivolous, courts are required to

examin17 whether or not the conduct was continued when its lackof legal or factual basis

was apparent [or] should have been apparent (22 NYCRR 130-1.1 [c]). InSakow ex

rel. Columbia Bagel, Inc. v Columbia Bagel, Inc.(6 Misc 3d 939 ,94 3 [Sup Ct, New York

County 2004]), the Court held that [iln assessing whether to award sanctions, the Court

must consider whether the attorney adhered to the standardsof a reasonable attorney

(Principe v Assay Pa rtners (1 54 Misc 2d 702 [Sup Ct, NY County 1992]). This Court

will examineMr. Hausers conduct at a hearing, pursuant to 22 NYC RR0 130-1.1, to:

determineif Mr. Hauser adhered to the standardsof a reasonable attorney or engagedin

frivolous conduct; and, to allow M r. Hauser a reasonable opportunity to be heard.(See In

re Mancuso,- D3d-, 2008 NY Slip Op 01350 [2d Dept Feb. 13,20081;Mascia v-22-


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Maresco, 39 AD3d 504 [2d Dept 20071;Yan Klein, 35 AD3d 729 [2d Dept 20061;

Greene v Dora1 Conference Center Associates, 18 AD3d 429 [2d Dept 20051;Frankel v

Hirsch, 15 AD3d 438 [2d Dept 20051;Kucker v Kaminsky& Rich, 7 AD3d 39 [2d Dept

20041;Tyree Bros. Environmental Services, Inc. v Ferguson Propeller Inc., 247 AD2d

376 [26 Dept 19981).

Conclusion

Accordingly, it is

ORDER ED that the order to show causeof plaintiffs Congregation Yetev Lev

D'Satrnar, Inc., Ludovick W eisz, and Jacob Sc.lionfeld, pursuant to CPLR0 3 126 (3),

to: strike the remaining counterclaims of defendants Nachman Brach, Inc. W a26 Adar

N.B. Corp.and Nachman Brach; and, dismiss the instant action with prejudice due to the

failure of defendants Nachman B rach, Inc. W a26 Adar N.B. Corp. and Nachman Brach

to comply with my orders of November 17,2006 , March 2,20 07 , and July 6,200 7, is

granted; and it is further;

ORDER ED that the cross-motion of defendants Nachman B rach, Inc. W a26

Adar N.B. Corp. and Nachman Brach, pursuant to CPLR6 3 103 (a), for a protective

order, is denied as moot; and it is h rt he r

ORD ERED that it appearing that Noel I-lauser,Esq. engaged in "frivolous

conduct." as defined in the Rules of the Chief Administrator, 22 NYCR R 130-1 (c) and

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that pur.suant to the Rulesof the Chief Administrator,22 NYCRR 130.1.1(d), "[aln

award of costs or the im position of sanctions may be m ade upon m otion. . . or upon the

court's own initiative, after a reasonable oppormnity to be heard," this Court will conduct

a hearing affordingMr. Hauser ''a reasonable opportunity to be heard," before mein Part

27, on Friday, May16,2008, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn,

NY 1l:Ol; and it is fbrther

ORDERED,that RonaldD. Bratt, Esq., my Principal Law C lerk, is directed to

serve this order by first-class mail, upon NoelW. Hauser,Esq., 270 Madison Avenue,

New YI k 10016, and Tennenbaum& Berger, LLP,26 Court Street, Brooklyn, New

York 11242.

This constitutes the Decision and Order of the Court.

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nys failure to comply with orders dismiss order

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