Careful With Those Clients ….

Starting at Filsoof V. ColeYesterday’s decision by Judge Naomi Reice Buchwald, S.D.N.Y.):

After defendant had taken her deposition, on September 14th 2021, and was still present at plaintiff’s attorneys’ offices for counsel, two New York City officers arrested defendant on a lawsuit filed on August 20th 2021 by plaintiff alleging an incident in 2019 she hadn’t reported. However, defendant did not spend the night at Rikers after this arrest. The Assistant District Attorney had dismissed the complaint because it exceeded the 2-year statute of limitations for misdemeanors.

This arrest led to the present motion for sanctions. If granted, it would have career implications for the plaintiff’s lawyer and result in the dismissal. The Court is able to understand the defendant’s distress but the motion cannot be denied because the premises of the motion are too weak to withstand legal scrutiny.

This brief history is needed in order to understand the context of the current motion.

After an incident in California, which saw defendant arrested and a protective order entered in California, this case was brought. Plaintiff obtained in New York a temporary protective order requiring defendant to stay clear of plaintiff. In the interests of justice, both the California protective order and criminal charges were dropped by the District Attorney prior to defendant’s deposition. The New York protective order however remained in place. The question arose as to whether the defendant who is a California resident might face arrest for violating New York’s protective order, if he arrived in New York to take his deposition, and was not near plaintiff who wanted him to attend the deposition.

On August 11, 2021, counsel and the plaintiff attended a conference. The Court declared that it was unacceptable to make such an arrest. As everyone understood, the Court did not have any authority to change the New York State court’s protective order. Thus, the parties came to an agreement on a new protective order that was to be signed by a New York judge. The revised order included a clause allowing defendant to participate in any proceeding or depositions relating to the case. The parties did however file a second complaint against the defendant at the August 11 conference. This was after plaintiff informed police she knew defendant was in New York.

Analysing the motion, two issues arise: first, did plaintiff’s counsel have any sanctionable conduct; and second, did plaintiff herself have sanctionable behavior?

First, we will address the question of counsel. Plaintiff’s lawyer must have participated in the events that led to defendant being arrested because the arrest took place at plaintiff’s law office. All three of the defendant’s lawyers, as well as his associate and paralegal, have submitted affidavits disproving any involvement. Plaintiff swears, in a similar vein, that she didn’t inform or involve counsel about the filing of the complaint and the actions which led to defendant’s arrest.

The Court gives credit to counsel for his sworn denials, given the professional consequences that he submitted a false statement on a case so important in the judicial process and because it makes absolutely no sense for counsel to risk his career over a matter such small. It’s also completely unrealistic to suppose that police couldn’t access Bostany’s law office floor without permission or knowledge of defendant. Plaintiff is not required to take responsibility for all of her actions if defendant wants to dismiss the entire case. No matter how skeptical defendant and his lawyer may be, there’s no reason to sanction counsel. This aspect of the motion will not be granted.

The second prong in defendant’s motion concerns whether plaintiff is guilty of sanctionable behavior. A court does not have the same control over lawyers as it has over licensed professionals and officers of the courts. However, the court can exercise a lot of power on a litigant only if a specific order is broken. Check out So. Tel. Tel. Co. v. Global NAPs Inc. (2d Cir. (2010). (observing that a court could “hold a defendant in contempt for violating a court or order when the order was clear and unambiguous. The proof of non-compliance must be convincing. And the contemnor has not been reasonably diligent in complying with the order.” There was not such an order in this case and therefore no reason to declare plaintiff contempt. This aspect of the motion is also denied.

The denial of defendant’s sanctions motion should not be understood as an indication that plaintiff’s successful effort to have defendant arrested at his deposition will not be without consequence to her as this case progresses….

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