Zibell v. County of Westchester, 10866/06 ;Decided: June 20, 2007 ;Justice William J. Giacomo
WESTCHESTER COUNTY Supreme Court .

Here, the attorney but not the client was sanctioned.  Will further problems follow?

From the decision: "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity." (Kihl v. Pfeffer, 94 N.Y.2d 118,123 [1999]).

In this personal injury action in which plaintiffs’ counsel has chosen to ignore a court order and has continually and wilfully refused to ensure that his clients’ pretrial discovery and pleading obligations are fully satisfied, the Court concludes that in addition to granting conditional relief as against plaintiffs, their counsel should be sanctioned by ordering his firm to pay counsel fees and motion costs to defendant County of Westchester (the County).

Having determined that Gertel has engaged in frivolous conduct with respect to the positions taken by him as to the Two Disputes, the only remaining question is what is an appropriate sanction. Here, as a direct result of Gertel’s frivolous conduct, the County has had to incur costs in the nature of the time spent by their counsel in attending conferences to determine the status of discovery in the lawsuit, at two of which the issue of Gertel’s frivolous positions was raised, and in filing the instant motion. Likewise, this Court has endured a waste of its limited resources in having to address a motion made necessary because Gertel simply refuses to acknowledge the complete absence of legal support for his views as to the Two Disputes, when the Court’s time and effort could be put to better use resolving the meritorious legal disputes of other litigants. And adverse consequences such as these are precisely the type that are intended to be addressed by Section 130-1.1(a) (see Levy v. Carol Management Corp., 260 A.D.2d 27,34 [1st Dept. 1999] ["The goals [of the sanction rules] include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics"]). Under these circumstances, an appropriate sanction is warranted (see Drummond v. Drummond, 305 A.D.2d 450,451-452 [2d Dept. 2003], lv. denied 1 N.Y.3d 504 [2003] [Affirming imposition of sanction upon "finding that ‘(1) the attorney has abused the judicial process; (2) the attorney has caused the unnecessary expense of the court’s resources to respond to a wholly frivolous motion, one that is completely without merit in law and which cannot be supported by any reasonable argument; [and] (3) there is a need to prevent the attorney from engaging in further frivolous motion practice in this or any future matter.’"]).

Upon that determination, the Court grants the County’s motion to the extent that the law firm of Kagan & Gertel shall pay an award of counsel fees and motion filing costs to the County of Westchester in an amount to be determined upon the consideration of further written submissions (see Curcio v. J.P. Hogan Coring & Sawing Corp., supra, 303 A.D.2d, at 359 [Law Firm ordered to pay sanctions and costs where one of its attorneys had engaged in frivolous conduct]). By no later than July 3, 2007, the County shall submit a detailed billing statement reflecting the hours expended at the conferences on December 13, 2006 and January 31, 2007, and in the preparation of this motion, and the hourly pay rate of its counsel. Plaintiffs shall then have until July 13, 2007 to submit papers in response to the County’s submission. After considering the papers submitted by the parties, the Court shall determine the amount of the award to be paid by law firm of Kagan & Gerstel, which shall be set forth in a further order."